21st Century American Law: The Need for Judicial Diversity by Krystle Roper

21st Century American Law: The Need for Judicial Diversity

by

Krystle Roper

“I think there are some particular groups that historically have been underrepresented… that represent a larger and larger portion of the population,” President Barack Obama explained, regarding his latest judicial appointments.[i] Over the course of his terms in Oval Office, the President has made a concerted effort to increase diversity on the Federal Judiciary; compared to 18% of President Bush’s judgeships and 24% of President Clinton’s judgeships, 36% of President Obama’s judgeships have gone to racial minorities.[ii] “[F]or [citizens] to be able to see folks in robes that look like them is going to be important,” the President continued.[iii] Not only does a racially diverse Bench improve equal protection under the law, but it also strengthens the integrity of justice by weakening the racial exclusivity of power.

Ratified on July 9, 1868, the 14th Amendment was one of three “Reconstruction Amendments”[iv] intended to guarantee freedom to former slaves and extend Due Process rights and “equal protection of the laws” afforded to white citizens through the 5th Amendment, to all U.S. citizens as applied to the States.[v] Access to these rights, in part, depends on the manner by which the judiciary interprets the law and applies it on an individual basis.[vi]As a guideline, the third Judicial Canon of the Code of Conduct for United States Judges requires judges to act “fairly” and “impartially” when performing the duties of their office [vii] Black’s Law Dictionary defines the term “impartial” as “unbiased” and “disinterested.”[viii] Any personal bias or prejudice is actually deemed grounds for judges to disqualify themselves.[ix] Nevertheless according to Professor Bryan Fair, “[t]oo often legal institutions, structurally and functionally, reify the interests of the powerful against the interests of those without such power.”[x] Thus, for the judiciary as a whole to operate beyond the biased pitfalls of racial-dominance, the judiciary as a whole cannot be homogeneously white—as “race matters in judicial decision-making.”[xi]

The science of “implicit social cognition” reveals how “individuals do not have to consciously endorse [racial] stereotypes in order for them to negatively affect behaviors towards and judgments” of minorities.[xii] Racial biases are now so deeply embedded in American culture that they can operate subconsciously,[xiii] “even when people are motivated to be racially egalitarian” under the law.[xiv] “Unconscious racial profiling is automatic and unrelated to individuals’ explicit racial attitudes.”[xv] However, when the power of judicial authority is proportionately shared with those of color, the system’s interpretation and application of law as a whole is less likely to operate against minority citizens solely because of their racial classifications. Ultimately, Equal Protection and Due Process are reinforced as realities, as “diversity improves the way people think. By disrupting conformity, racial and ethnic diversity prompts people to scrutinize facts, think more deeply and develop their own opinions,” which “benefits everyone, minorities and majority alike”[xvi] by challenging the status quo of biased proceedings.

Although the President is doing his part regarding the Federal Bench, State Benches bear their own diversity challenges, reflecting “extreme under-representation among every racial minority group.”[xvii] Often times, the intersection of race, bias, and the law is left unacknowledged by key decision makers—this absence of acknowledgement reflected, at least to an extent, by the primarily white racial composition of the American judiciary.[xviii] According to the American Bar Association, only 7% of state judges are black—the venue in which “the vast majority of cases are handled.”[xix]  Unfortunately concerning race issues, the “most common behavioral pattern” for many whites is simply “avoiding the issue,” if possible.”[xx] “When that response is not feasible, the next line of defense is to deny the presence of racial dynamics.”[xxi] According to the Brennan Center’s Report, “the judicial selection commissions of some states have no African American representation, and as recently as 2010 there were still some states with all-white benches. They also noted evidence that the number of black male judges is actually decreasing.”[xxii] The decrease in numbers is problematic in itself, especially when the judicial discretion of those remaining is already subject to counterproductive reprimand.

For instance, as microcosms of American society, all-white juries can be breeding grounds for stereotyping minority defendants as “violent, hypermasculine, animal-like, criminal, and unintelligent.”[xxiii] Such stereotypes only reinforce hyper-incarceration and racial subordination.[xxiv] For judges of color who confront such bias from the Bench, the backlash of an empowered white majority may await them. Recently, the Honorable Judge Olu Stevens, of Jefferson Circuit Court in Kentucky, dismissed an all-white jury panel in a drug case, and dismissed another all-white jury panel in a theft case.[xxv]  Both cases involved Black defendants.[xxvi] “There is not a single African-American on this jury, and [the defendant] is an African-American man,” his Honor stated to one jury.[xxvii] “I cannot in good conscience go forward with this jury,”[xxviii] as the defendants would have likely been tried against a subjective standard of bias as opposed to an objective standard of reason.

In response to Judge Stevens’ advocacy for greater minority presence on jury panels, he was disqualified from both cases.[xxix] Although Chief Justice John D. Minton, of Kentucky, explained how it “was not within his powers to remove Stevens from all criminal cases, he harshly rebuked Stevens and referred the matter to the state Judicial Conduct Commission, which is reviewing whether Stevens violated the judicial conduct code.”[xxx] While the efforts of judges like Stevens to improve the application of justice through courtroom diversity can be challenged, their absence from the Bench can undermine justice altogether.

Race has been empirically proven to affect a “judge’s ability to appreciate the perspective of a plaintiff of another race.”[xxxi] Ethnic similarities between a judge and a defendant can invoke sympathy in ways unattainable between majority judges and minority defendants. For example, in People v. Zackowitz, Justice Cardozo, a man of Jewish descent,[xxxii] showed great sympathy towards the Jewish defendant, who was appealing his first-degree murder conviction on grounds of improper admittance of prejudicial evidence.[xxxiii] Justice Cardozo made significant use of passive voice in his majority opinion—linguistically casting blame away from the defendant, while emphasizing his positive attributes: the defendant had no prior criminal record and was employed.[xxxiv] Furthermore, Justice Cardozo humanized the defendant as a victim of passion through rhetorical questioning: “Was he so inflamed by drink or by anger or by both combined that, though he knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment?”[xxxv] In Zackowitz, the judge’s ability to find common ground with the defendant enforced equal protection under the law, in an otherwise biased justice system, set out to prove the defendant’s “murderous disposition” and evil character.[xxxvi]

However, such outcomes are too often not the norm for minority defendants. In Let’s Get Free: A Hip-Hop Theory of Justice, Paul Butler writes “when lawmakers don’t want people to have jury trials for certain offenses, they make the sentence for the crime less than six months in jail; then, according to the U.S. Supreme Court, the defendant is only entitled to a bench trial.”[xxxvii] This is significant because judges are “more likely to convict” than juries.[xxxviii] The “objective standard inevitably requires judges to have to recourse to their own understandings of what is reasonable.”[xxxix] And “given that the bench has been, and continues to be, overwhelming [white] male, judicial interpretations will be limited and skewed by the similarly limited life experiences of decision-makers.”[xl]

Further research shows how implicit racial biases can have “a number of pernicious effects.”[xli] For example, such bias “can cause individuals to interpret identical facial expressions as more hostile” on minority faces than on white faces.[xlii] In the context of a courtroom, identical ambiguous behaviors can be perceived as “more aggressive when engaged in by blacks as opposed to whites.”[xliii] Furthermore, black defendants can unconsciously be associated with criminality and danger.[xliv] For a defendant of color, the application of principles like the Reasonable Person Standard can be undercut by a lack of racial diversity in the courtroom, thereby undermining 5th and 14th Amendment protections.

Even in the civil context of race-sensitive cases, predominantly white benches have strongly influenced decisions against African-American plaintiff-employees, in favor of predominantly white defendant-employers.[xlv] According to a 20-year empirical study of federal harassment cases, “plaintiff-employees have a very poor win rate in general – succeeding in only 22% of cases overall…the statistical analyses consistently showed that the race of the judge can make a significant difference.”[xlvi] Of course, “[w]hile plaintiffs have a poor win rate in general, they are much more likely to win if their cases come before African American rather than white judges.”[xlvii]

Because of the legal system’s inherent bias against people of color as a disproportionately white institution, the justice system itself should reflect the diverse citizenry subject to its authority. As studies show, racial diversity is significant in heightening analytical aptitude away from the negative influence of preconceived notions and cultural stereotypes.[xlviii] A diverse judiciary can ultimately relax any bias underlying the interpretation and application of law for those of color, thereby reinforcing Equal Protection and Due Process as constitutional guarantees for all.

[i]Jeffrey Toobin, The Obama Brief: The President Considers His Judicial Legacy, The New Yorker (October 27, 2014), http://www.newyorker.com/magazine/2014/10/27/obama-brief.

[ii] Id.

[iii] Id.

[iv] Landmark Legislation: Thirteenth, Fourteenth, & Fifteenth Amendments, United States Senate (2014), http://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm.

[v] U.S. CONST. AMEND. XIV, §1

[vi] See Peter Strauss, Due Process, Legal Information Institute, https://www.law.cornell.edu/wex/due_process (last visited Feb. 16, 2016) (proposing that “[t]he Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds”).

[vii] Code of Conduct for United States Judges, United States Courts (March 20, 2014), http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#d.

[viii]Black’s Law Dictionary, 767 (8th ed. 2008).

[ix] Code of Conduct for United States Judges, United States Courts (March 20, 2014), http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#d.

[x] Bryan K. Fair, Still Standing in the Schoolhouse Door: Deconstructing Brown’s Bias and Reconstructing Its Remedy, 2 Ind. J. L. & Soc. Equal. 137, 138 (2013).

[xi] Pat K. Chew & Robert E. Kelley, Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009).

[xii] L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. Crim. L. 115, 120 (2014).

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Sheen S. Levine & David Stark, Diversity Makes You Brighter, The New York Times (Dec. 9, 2015),  http://www.nytimes.com/2015/12/09/opinion/diversity-makes-you-brighter.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=.

[xvii] Pat K. Chew & Robert E. Kelley, Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009).

[xviii] Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity, And Rule Of Law, 73 Fordham L. Rev. 2081, 2087 (2005).

[xix] Yolanda Young, Why The US Needs Black Lawyers Even More Than It Needs Black Police, The Guardian (May 11, 2015), http://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers.

[xx] Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity, And Rule Of Law, 73 Fordham L. Rev. 2081, 2088 (2005).

[xxi] Id.

[xxii] Yolanda Young, Why The US Needs Black Lawyers Even More Than It Needs Black Police, The Guardian (May 11, 2015), http://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers.

[xxiii] L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. Crim. L. 115, 120 (2014).

[xxiv] Id.

[xxv] Shenequa Golding, A Kentucky Judge Dismissed a Jury Because It Lacked Black Representation, Vibe (October 28, 2015), http://www.vibe.com/2015/10/kentucky-judge-dismisses-all-white-jury/.

[xxvi] Id.

[xxvii] Id.

[xxviii] Id.

[xxix] Matthew Glowicki, Judge Olu Stevens Removed From Another Case, Courier-Journal (January 14, 2016), http://www.courier-journal.com/story/news/crime/2016/01/13/judge-olu-stevens-removed-another-case/78742266/.

[xxx] Id.

[xxxi] Id.

[xxxii]Benjamin Cardozo Biography, The Biography.com Website (2016), http://www.biography.com/people/benjamin-cardozo-40728.

[xxxiii] People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930).

[xxxiv] Id.

[xxxv] Id.

[xxxvi] Id.

[xxxvii] Paul Butler, Let’s Get Free: A Hip-Hop Theory of Justice 1 (The New Press 2009).

[xxxviii] Id.

[xxxix] Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard 200 (Oxford University Press 2003).

[xl] Id.

[xli] Kurt Hugenberg & Galen V. Bodenhausen, Facing Prejudice: Implicit Prejudice and the Perception of Facial Threat, 14 PSYCHOL. SCI. 640 (2003).

[xlii] Id.

[xliii] Birt L. Duncan, Differential Social Perception and Attribution of Intergroup Violence: Testing the Lower Limits of Stereotyping of Blacks, 34 J. PERSONALITY & SOC. PSYCHOL. 590 (1976)

[xliv] Id.

[xlv] Pat K. Chew & Robert E. Kelley, Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009).

[xlvi] Id.

[xlvii] Id.

[xlviii] Sheen S. Levine & David Stark, Diversity Makes You Brighter, The New York Times (Dec. 9, 2015), http://www.nytimes.com/2015/12/09/opinion/diversity-makes-you-brighter.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=.

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