Sacramento Defense Lawyer, And Assistant Federal Public Defenders Report Instances Of Bias By Other Counsels

The Ninth Circuit Task Force on Racial, Religious & Ethnic Fairness has issued its final report, the product of a three-year study of the effects of race, religion, and ethnicity on the business of the courts of the Ninth Circuit. The task force’s findings and recommendations are found in the 77- page Final Report of the Ninth Circuit Task Force on Racial, Religious & Ethnic Fairness, August 1997, issued by the Ninth Circuit Office of the Circuit Executive. The 18-member task force, consisting of judges, court staff, lawyers, and a social scientist, was formed in late 1993 and chaired by United States District Judge David F. Levi of Sacramento, California. Charged with investigating the effects of race, religion, and ethnicity on the business of the federal courts in the nine western states, the task force focused its attention on three areas:
(1) the courts as employer—what is the demographic composition of Ninth Circuit court employees and what are their perceptions regarding various employment issues?
(2) the litigation process—how do judges and lawyers view the effects of race, religion, and ethnicity on the fairness of the litigation process in Ninth Circuit courts?
(3) criminal justice issues—does the race or ethnicity of criminal defendants unfairly influence pretrial detention decisions or sentencing outcomes?
The Final Report provides a summary overview of the six individual scholarly research studies that were conducted under the auspices of the task force to answer the questions posed above.
Among the major findings, the task force found:
The racial and ethnic distribution of court employees generally reflects the demographic make up of the particular court’s resident labor force.
Both minority and white employees generally report that the courts of the Ninth Circuit are fair employers who do not treat employees disparately based upon their race, religion, or ethnicity. However, about one-third of court employees reported having heard demeaning or disparaging comments based upon gender, race or ethnicity within the last three years. The two most frequent sources of such statements were reported as court staff or members of the public.
Very few lawyers report that they have observed any instance of judicial bias. A somewhat larger group of lawyers -- but still a small percentage -- report the observation of one or more instances of bias by other counsel.
However, criminal defense attorneys, and assistant federal public defenders in particular, report many more instances of bias by other counsel, judges, or court staff.
The rate of pre-trial release or detention varies by racial or ethnic group. At the level of the circuit, 65% of Hispanic defendants, 45% of African American defendants, 32% of white defendants, 26% of Native American defendants and 26% of Asian defendants were detained in 1994. However, these differences in rates of detention generally are explained by factors such as citizenship, criminal history, nature of the crime charged, and residential status. When analyzed by district, the data reveal that race and ethnicity are not statistically significant variables in the detention decision.
The rates and reasons for detention vary substantially from district to district.
The study of sentencing data for 1994 and 1995 finds that although the average sentence varies by defendant race or ethnicity, from a high of 61 months for African American defendants to a low of 30 months for Asian/Pacific Islander defendants, these difference are explained by a set of legally relevant factors most often associated with characteristics of the offense, such as the presence of a firearm, and the criminal history of the defendant.
The Final Report concludes:
The overall findings are positive. They suggest that the courts of the Ninth Circuit, whether overseeing and resolving litigation or as employers, generally are free from bias based upon race, religion, or ethnicity. The circuit can take pride in the positive findings while recognizing that there is yet need for improvement and for further reflection....Maintaining a court system that is free of bias is a continuing effort for the future. The circuit has the opportunity to build on the positive findings and to improve.
Based upon the findings, the task force has issued seven specific recommendations calling for:

1. Review of the final report by each district to determine what programs or changes would be desirable and report back to an oversight committee.
2. Adoption of a resolution by each district reaffirming its commitment to fair and equal treatment of all persons.
3. Further investigation and study of the disparity in perceptions found in the attorney
survey by those who practice criminal law, and of the variations among districts concerning detention and bail.
4. Wider availability for judges and lawyers of opportunities for service to the courts on committees and through special appointments.
5. Increased educational offerings to judges, court employees, and lawyers on issues of racial, religious, and ethnic bias, with specific reference to particular cultures in each district.
6. Development of an improved system for identifying and sharing interpreter resources across districts, and for expanding the availability of interpreters in civil cases.
7. Continuing oversight by an appropriate body to assure implementation and follow-up work on racial, ethnic, and religious fairness issues.