RACIAL INEQUALITY AND SYSTEMIC INJUSTICE TACKLED BY U.S. COURTS
In a yet-to-be-published
article, my colleagues Sahira Abdool, Tricia Cameron-Anglin, and Jeffrey
Newman and I wrote that the twin crises of systemic racial injustice
and the Covid-19 pandemic have caused unprecedented social and economic
upheaval – including economic contraction and violent street protests -- that
pose existential threats to society. The article is an urgent call to action
for judicial leaders, both judges and court administrators, not only to
continue to provide critical justice services but also to become active
participants in a whole-of-society
approach (WOSA) to combat racial injustice
and the pandemic.
For example,
we urge court leaders to close the gap between
the law on the books and the law in practice by asking tough questions about
differences between what we would like to see happen and what actually is
happening in the justice system, such as the fact that pretrial custody account for roughly one-third
of all incarcerated individuals globally. A “disproportionate number of these pretrial
detainees belong to poor and marginalized groups that are politically,
economically, and socially discriminated against,” we wrote.
As our
article makes clear, though most judicial leaders have remained silent, leading
jurists and the highest state courts in the U.S. have stepped off the sidelines,
“going against the grain of codes and
the general practice of judges not commenting on issues outside their published
opinions,” and have spoken out about racial justice and police violence, making
it clear that the judiciary has a role to
play in rooting out racial biases and systemic injustices.
More
Judicial Leaders Today Willing to Combat Systemic Racial Injustice
That trend
is continuing, I believe. For example, on September 1, the National Center for State Courts
(NCSC) announced
that Edwin Bell, deputy court administrator for the Stone Mountain Judicial
Circuit in Decatur, Georgia, will join NCSC next month as the director of
Racial Equity, Fairness, and Inclusion. The position was created to support a resolution passed in July by the
Conference of Chief Justices (CCJ) and the Conference of State Court
Administrators (COSCA), aimed to address racial equality in the justice system.
In an
interview published September 9th in the NCSC’s @the Center Newsletter,
Mr. Bell recounted an example of a “possible starting place” for tackling
systemic injustice that he has observed – judicial calendaring -- an example which some may regard as a mundane part of everyday
court operations. Bell said that for years he has seen judges,
who may have more than 50 cases on their morning calendar, separate litigants into
two groups, those who have attorneys and those who do not. Cases of litigants
with attorneys are heard first; lower income and self-represented litigants are
left waiting, sometimes for hours. While this is not intended as a racial
decision, Bell said “it can have a disproportionate impact on the economically
disadvantaged, who are often minorities … There has to be a way ahead of time
to separate these groups,” that does not leave one group missing work and
suffering other potential personal and economic impact not experienced by the
other group.
Are We Ready for
Political Football?
The National Football League (NFL)
started last night with the Kansas City Chiefs defeating the Houston Oilers, an
event that had an outsized significance for me during Covid-19. In 2016, Colin Rand Kaepernick, then a
quarterback for the San Francisco 49ers began kneeling, rather than stand as is customary, during
the playing of the national anthem at the start of NFL games in protest of
police brutality and racial inequality in the United States. His protests received
highly polarized reactions. While some praised him, others denounced his stand
against racism, claiming that politics should not intrude into sports. Things
have changed in four years.
In June of this year, amid the George
Floyd protests, NFL Commissioner Roger Goodell put out a statement in which he apologized
for not listening to the concerns of Kaepernick and other African American
players. While the two situations are quite different, I can’t help but think –
and hope – that the change in the public’s views of Kaepernick’s actions may be
analogous to a widespread acknowledgment that time is now for courts and their
justice partners to speak up and act out to combat structural racial injustice.
We need to speak out and not cede
floor to others. Silence does not benefit the courts and society.
CourtMetrics 2020. All Rights
Reserved.
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