Prejudice in the Legal System

Alexis Peterson, Coeditor

Liberty and Justice for all?

“I pledge allegiance to the flag of the United States of America and to the Republic, for which it stands. One Nation, Under God, for Liberty and Justice for All” (U.S. Pledge of Allegiance). The American Pledge of Allegiance guarantees “liberty and justice for all”, promising to protect its citizens against any discrimination within the very roots of the nation. Yet the Brennan Center, a National Center for researching the justice system, has found proof against this standard, citing that “state high courts are composed of 55% of white men”. This accounts for only 45 percent of minorities who fill the courts, whereas only white men account for over half of the justice system. This goes directly against the goal that justice is truly free and diverse, that sentences would not be biased by any difference in personage. Naturally, everyone has discrepancies; however, this imbalance of power and authority enables unjust and unequal sentencing for minority groups.

Therefore, there are judicial prejudices within the government, and this is seen in the results of judicial review. Steve Lubet, a law professor at Northwestern University, defined judicial bias in an interview with National Public Radio, as “favoritism or an inclination to favor one party to the litigation or one of the lawyers”, excluding “things like predisposition to have a certain view of the law. It needs to be personal, or directly in favor or against one side of the case” (National Public Radio). This includes personal biases against race, religion, sexual orientation, gender identity, disability, national origins, and any other characteristic. The United States, despite its multi-cultural background, has struggled with such biases against different groups. Many of these judicial biases are often due to America’s very racist background, including a general fear of Native Americans. The legal system is very biased and true racial diversity can be achieved through the courts, the law enforcement, and the education systems. 

One group of individuals who have been mistreated for racial and cultural differences have been the Native Americans. The first colonists in North America encountered these people and feared them to be “savages”. The “pale man”, as the Native Americans refer to them, had settled in the territory that was the Natives’. Over time, settlers came and settlements grew, expanding into Native lands until the Trail of Tears came. Andrew Jackson, the seventh president of the United States from 1829 to 1837, implemented the Indian Removal Act in 1830. This act “gave the federal government the power to exchange Native-held land in the cotton kingdom east of the Mississippi for land to the west, in the “Indian colonization zone” that the United States had acquired as part of the Louisiana Purchase” (History Channel). In essence, the federal government drove Native Americans out of their homes and camps, requiring they walk halfway across the country to “Indian” Reservations, where they were held to separate their culture from settlers. Elders, women, and children were forced to walk tedious miles across barren and unforgiving land and many perished as a result. This is when the journey was dubbed the “Trail of Tears” by a Choctaw leader. Evermore, the Natives would later experience the assimilation of their culture- being required to attend schools with white children, punished when speaking their native dialect, and forced to dress like white children with braids in their (once flowing) hair. Even today, despite more modern attempts to amend the wrongs done in the past, Native American citizens are severely underrepresented, especially in the court systems that once ruled for their expulsion to strange lands they had never been in.Cavicchia).

Law history has helped to improve such biases- addressing current events that focused on such struggles. There have also been several Constitutional Amendments incorporating this idea, specifically the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (U.S Constitution). This Amendment asks that the government have no power to select specific religions to set a theocracy, as well as providing basic rights for the people to petition their government for change, which enhances the capabilities of a more diverse societal population to speak out against injustices against the many people groups. However, these do not seem to succeed in actual practice, despite the theory, Morality in courts follows some ethicality beliefs found in Christianity and Judaism, which stands against those who do not follow such religions. Limitations expand also to the courts via the Fifth Amendment, which states “…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (U.S. Constitution). This amendment ensures that, in court, when a man or woman is sentenced to prison, they cannot receive “double jeopardy”- which is the idea, according to Cornell Law School, “prohibits anyone from being prosecuted twice for substantially the same crime”. While, in “Liberty, Equality and Due Process: Cases, Controversies, and Contexts in Constitutional Law”, Ruthann Robson argues, there are debates as to different interpretations of the Constitution (90), the definition of these different ideas presented in the Constitution has been clarified over the years with diverse court cases. Minorities have become more represented over time with these cases; however, true and complete representation for minorities is not found on the judge’s bench, despite the nation’s growth and diversification in population.

Graph A

While some may argue that diverse courts are not important or would not make a difference, there is such a crucial statistic that is unadmitted. While, as seen on graph A above, the rate of incarceration in the United States has increased continuously over the last three decades, with a primary peak in 1999, the overall incarceration rate over the last decade has decreased slightly from the peak at 1,000 per 100,000 people to a decrease at approximately 850 per 100,000 people in 2016. However, minorities have been apprehended at a disproportionate rate in comparison to the overall population. The NAACP has found that “African Americans and Hispanics make approximately 32% of the US population… comprised 56% of all incarcerated people in 2015”. The organization also found that although white and black people abuse drugs at similar rates. Blacks are incarcerated almost 6 times their white peers. This shows there is a critical disadvantage to differing racial backgrounds on the judge’s bench.

These disparities can be resolved by incorporating more minorities in the justice system. As of today, law enforcement has become much more diverse over the last few decades.  In 2015, under the Obama presidential administration, the head of the Civil Rights Division in government Vanita Gupta addressed the concerns of unequal treatment in law enforcement due to unequal diversity, stating that “No single solution, including a more diverse police force, will strengthen fragmented ties of community trust overnight or guarantee safe, effective and constitutional policing.  Yet greater diversity can increase trust between police officers and the communities they serve – trust essential to defusing tension, to solving crimes and to creating a system where citizens view law enforcement as fair and just”. Gupta saw the value of using much more diverse enforcement to help these disproportions of minority-to-white ratio in the American population and used his influence in government to establish a study, “the literature review that surveyed existing research evaluating the steps law enforcement agencies can adopt to enhance their diversity”. This is the literature they provided to the President’s Task Force for Policing in early January of 2015, which helped the Task Force determine the methods that needed to be utilized to ensure a much more diverse enforcement unit. Furthermore, in “Advancing Diversity in Law Enforcement”, Gupta and Jenny Yang (the chair of the U.S. Equal Employment Opportunity Commission), wrote that diversity in law enforcement would highly benefit everyone, arguing that “research further suggests that increased diversity can make law enforcement agencies more open to reform, more willing to initiate cultural and systemic changes, and more responsive to the residents they serve”. They are arguing that diversity in law enforcement will benefit citizens by making officers more responsive and willing to change for the citizens’ best interest, will benefit the federal government by initiating more deep and profound change based on corrupt influence, and will benefit officers by giving them a more open mindset. These are, arguably, some of the most important factors to put into consideration for an agency that must react to all current events and occurrences.  The Pew Research Center released a report in late 2018, as seen below in Graph B,  revealing that many perspectives of unfair or fair treatment resulted from different groups 

Graph B

of people. For instance, while eleven percent of overall officers believed whites were treated better than minorities, one percent of white officers believed this; whereas, fifty-three percent of black officers believed this, with a median of nineteen percent of Hispanics believing it. This shows that internal mindsets must change because there is no true average in every group believing this ideal. Women in law enforcement also experience a non-diverse population mindset. However, this problem of unequal diversity is far less severe in comparison to the late 1980s, according to Pew Research in Graph C, which found that, while women and minorities did feel unfairly treated in the police force, the population proportions of each had changed significantly from the late 1980s, as seen below. Women in the police force had increased by four percent, blacks had increased by three percent, Hispanics by eight percent, and other minorities by three percent. However, even within 2013, minorities and women are not evenly represented within the police force. Having this diversity in the police force would highly benefit these citizens, as people with similar characteristics understand more perspectives than those who differ in perspective. They can comprehend the emotions and sympathize or empathize more with the citizens in question. This is why it is so crucial that true justice is developed via diversity in law enforcement.

Graph C

Some may argue that proportions of citizens may truly be represented by the proportions of diversity in the law system; however, many studies evidence that this is not true. The American Bar Association, in the publication of “Diversity and Inclusion in the Law System”, stated that 

“according to the ABA’s National Lawyer Population Survey, 4 percent of active attorneys identified as Black or African American in 2007 and 4 percent identified as Hispanic or Latino. By 2017, those numbers rose only slightly to 5 percent each. Yet, data collected by the U.S. Census Bureau indicates that, as of 2016, Black or African American individuals made up 13.3 percent of the total U.S. population and Hispanic or Latino individuals made up 17.8 percent of the total U.S. population.” 

This accounts that for every black lawyer, they must represent three black citizens. This shows that the judge’s bench is under-representing minorities and only providing minorities a chance to have a white lawyer, who may have a severe bias against that minority race, despite their best attempts, merely because they do not have a similar perspective to their client. Similarly, Sounman Hong, in a Washington Post article for 2017, tested the idea that racial diversity does improve policing and found that, when England and Wales added more minorities, “Specifically, a 1.5 percent increase in the share of a force’s ethnic minority officers was associated with an 11 percent reduction in the number of upheld complaints per officer.” However, Hong argued that “what seems to be needed is an open discussion of how minority citizens are treated–a discussion that can be prompted by expanding the proportion of minority officers.” He, in essence, was arguing that it may benefit individuals more to enhance diversity training. However, I argue there must be further reform- actions will motivate reactions. If the legal system were to hire more diverse individuals, the influence of them within the workplace will create a more welcoming atmosphere in the courts for those minorities.

One of the most crucial fundamentals of true judicial diversity is the aspect of education. In late 2017, the federal Department of Education released a report known as the “Improving 

Outcomes for All Students: Strategies and Considerations to Increase Student Diversity”. This report outlined the basic implementations of diversity into the education system, which focuses on surveying and implementing different incentives for diversity; these incentives include charter schooling, funding programs, and waitlists. However, this report cited that “recent data also indicate less progress toward creating greater diversity within participating schools. The common levy was a source of friction among many of the districts and this component was repealed in 2016”. This statistic, the consideration that diversity in the school programs had significantly decreased, showed a great reason for concern regarding the education system. The less diverse the student population in higher-level schools, the less likely these students will be knowledgeable enough to go into law school or police training. Intellect is crucial in these fields and these children attending poverty-stricken schools are at a much higher risk of not approaching a secondary education. According to the Law School Admission Council’s website, “Minority groups have been historically underrepresented in the legal profession. Both law school and the profession do not currently reflect the vibrant and expanding racial and ethnic population of our society”. They argue that law schools are not as truly diverse or representative of the civilian population. This is crucial, as the lawyers are not reflective of society, making minorities less protected in their privileges.

 

Graph D

As seen above, Graph D from enjuris’s website shows how truly diverse the student population is in law schools. Overall, the highest percentage of minorities is fifty percent in New Mexico, most likely due to sharing the Mexican border. Concerningly, this was the graph from 2018, which the website cited as “the 2018 law school class was more racially diverse than the 2017 class. Every race and ethnicity that the ABA tracks through the ABA Annual Questionnaire increased by at least 6.1%. This includes Hispanics, Native Americans or Alaska Natives, Asians, Black Americans, Native Hawaiians or other Pacific Islanders, and Whites”. This shows that, while there may have been more people participating in the survey, the overall racial and ethnic backgrounds have increased rather drastically. This is a crucial stepping stone in American society- as the law school will soon improve the legal system’s diversity by providing more young professionals and an opportunity to grow new civility laws.

Overall, reform must come. It has been proven statistically that minorities have been incarcerated more than white people, showing how closed the law system is. To make reform, we must reform the approaches to law enforcement, court systems, and overall education pathways. To begin, we can encourage minority youth by providing more income and help to the high-risk poverty areas in all cities so they can obtain a better education to achieve their academic ambitions. These youth will grow into the police officers, parole officers, lawyers, attorneys, and the judges of the future. The future is today and bringing change to today will make the future change as well. Authorities should encourage further diversity training for current legal issues and provide more opportunities for minorities seeking these careers. The future of diversity can be amazingly bright- given current circumstances change. The future comes now.

 

Works Cited

Improving Outcomes for All Students: Strategies and Considerations to Increase Student Diversity

“About Half of Black Officers Say Whites Are Treated Better than Minorities.” Pew Research Center, Pew Research Center, www.pewresearch.org/fact-tank/2019/05/21/from-police-to-parole-black-and-white-americans-differ-widely-in-their-views-of-criminal-justice-system/. Graph B

“Advancing Diversity in Law Enforcement.” 2015.

Bannon, Alicia, and Janna Adelstein. “State Supreme Court Diversity – February 2020 Update.” Brennan Center for Justice, 20 Feb. 2020, www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-february-2020-update.

Cavicchia, M. (2015, August).

“Diversity in Law School.” The Law School Admission Council, 2020, www.lsac.org/discover-law/diversity-law-school.

“Double Jeopardy.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/double_jeopardy.

Enjuris. “Minority Law Students By State.” Enjuris, Enjuris, 2018, www.enjuris.com/students/law-school-race-2018.html. Graph D

Gupta, Vanita, and Jenny R. Yang. Advancing Diversity in Law Enforcement. 2016, Advancing Diversity in Law Enforcement, www.eeoc.gov/eeoc/interagency/police-diversity-report.cfm.

Hong, Sounman. “Diversity in the Police Force.” ProQuest, 2017, explore.proquest.com/sirsissuesresearcher/document/2265915909?searchid=1582640275&accountid=8648.

Laffey, Allison E. “Diversity and Inclusion in the Law: Challenges and Initiatives.” American Bar Association, 2 May 2018, www.americanbar.org/groups/litigation/committees/jiop/articles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/.

Ludden, Jennifer, et al. “Judicial Bias: What Crosses the Line? .” National Public Radio, National Public Radio, 19 July 2012, www.npr.org/2012/07/19/157052848/laying-down-the-law-on-judicial-bias. Accessed 3 Mar. 2020.

Morin, Rich, et al. “Inside America’s Police Departments.” Pew Research Center’s Social & Demographic Trends Project, 31 Dec. 2019, www.pewsocialtrends.org/2017/01/11/inside-americas-police-departments/.

NAACP. NAACP, 2020, NAACP, www.naacp.org/criminal-justice-fact-sheet/.

Bureau of Jusice. “Incarceration Rate, 1980-2016.” Bureau of Justice Statistics, Federal Bureau of Justice, www.bjs.gov/index.cfm?ty=kfdetail&iid=493. Graph A

Robson, Ruthann. “Liberty, Equality, and Due Process.” Liberty, Equality, and Due Process, 2nd ed., CALI ELangdell Press, 2019, pp. 90–90, CALI eLangdell Press.

“Trail of Tears.” History.com, A&E Television Networks, 9 Nov. 2009, www.history.com/topics/native-american-history/trail-of-tears.

U.S. Pledge of Allegiance, 4 USC Sec. 4

United States Constitution. Amend. I

United States Constitution. Amend.I