| William E. Martin and Peter N.
Thompson
excerpted from: William E. Martin and Peter N.
Thompson, Judicial Toleration of Racial Bias in the Minnesota Justice
System, 25 Hamline Law Review 235-270, 236-240 (Winter, 2002)(230
Footnotes Omitted)
"I think in part, this state has a false image of itself ...
that we [are] different from the rest of the U.S., and we're not.
We're as racist as the red hills of Alabama." Chief Judge Kevin
Burke, Hennepin County District Court.
Racial bias exists in American society and in Minnesota. Racial bias
necessarily exists in the Minnesota justice system to the extent that
the justice system implements norms based on societal values. Racial
bias persists in the Minnesota justice system because the judiciary is
willing to tolerate racial bias to advance other goals. A review of
Minnesota Supreme Court decisions could lead to the conclusion that
racial or cultural bias is not a problem in the Minnesota justice
system. It came as a surprise to some in 1993 when the Minnesota Supreme
Court Task Force on Racial Bias in the Judicial System published
findings that racial bias was rampant in the Minnesota judicial system.
This conclusion seemed inconsistent with the hundreds of pages of
appellate opinions that reveal no racial bias or only insignificant
incidents of racial bias in Minnesota courts. The Task Force, however,
found extensive racial bias at all stages of the criminal process where
public officials, including police officers, prosecutors and judges,
make discretionary decisions. From the decision of the police officer to
make a stop on the street, through the decisions to arrest, charge, plea
bargain, set bail and sentence, persons of color receive
disproportionately harsh treatment.
More surprising than their conclusion that racial bias permeates
Minnesota's justice system was the fact that the authors of the report
included many of the judges who had been presiding over this unfair
system for so long. According to Rosalie E. Wahl, Associate Justice of
the Minnesota Supreme Court and Chair of the Racial Bias Task Force:
"The bottom line is that bias exists. It is our obligation to look
at and, as necessary, reshape our own approaches as well as the
framework and environment of the courts as an institution." The
damning conclusions of the Task Force stand in stark contrast to the
thousands of pages of appellate opinions in which the courts rarely, if
ever, identify serious racial unfairness in the criminal justice system.
Looking in judicial opinions for evidence of racial bias is often
like searching for sin at church. Certainly sin is common among the
parishioners, but it is difficult to detect on Sunday morning. Prior to
1954, a review of federal appellate opinions also might have led one to
believe that state- supported apartheid in the American public school
system was benign, providing equal opportunity to African American
school children in the United States. In that year the United States
Supreme Court had the courage to admit that the Court and the nation had
been blind to fundamental inequalities in educational opportunities. In
Brown v. Board of Education, the United States Supreme Court reached the
remarkable conclusion, known for years by every fifth grader in the
South, that "separate educational facilities are inherently
unequal" and do not provide equal protection of the laws.
Brown was subject, at first, to the criticism that the Supreme Court
had engaged in judicial activism and social engineering, rather than in
the application of the law. Certainly Brown and succeeding federal
decisions desegregating schools were in the vanguard of the civil rights
movement in the United States. In Brown, the United States Supreme Court
took a bold step the political arm of the government was unwilling to
take.
The Minnesota courts today, like the courts before 1954, often appear
oblivious to, or tolerant of, substantial racial bias in the judicial
process. Where the United States Supreme Court in Brown was ahead of the
mainstream of societal opinion and legislative direction, the Minnesota
Supreme Court may be behind. Today, few would argue with the notion that
trials in Minnesota should be free of ethnic and racial bias.
Nonetheless, the Minnesota Supreme Court, unlike the United States
Supreme Court in Brown, often ignores or excuses racial bias in
Minnesota trial courts. The Minnesota appellate courts have been
unwilling to take a stand against racial bias and unequal treatment in
the trial process. Rather, the court has attempted to deal with bias
issues through extra-judicial comments in the press or bar journal
articles, by mandating education for participants in the justice system
or through the work of various task forces.
The Minnesota Supreme Court's most significant response to the grim
conclusions of the Task Force on Racial Bias was to appoint another task
force to implement the recommendations of the first task force. The
legal opinions of the court, however, reflect business as usual.
Incidents of racial bias in trials continue to be ignored or are treated
as insignificant by the court.
Despite the fact that most of the recommendations in the 1993 Task
Force have been implemented, racial bias in the Minnesota justice system
appears to be getting worse and not better. Recent studies show that
African Americans in Minnesota are arrested for violent crimes at a rate
twenty-five times higher than the arrest rate for Whites, a disparity
higher than any other state in the nation. Further, although Minnesota
was ninety-one percent White as of 1998, forty-eight percent of state
prisoners are persons of color. In Minneapolis, persons of color
represent thirty-five percent of the population, but over fifty percent
of the drivers stopped by the police. In St. Paul, nineteen percent of
black motorists were frisked during a traffic stop, compared to eight
percent of white motorists stopped.
The problem of racial bias in the Minnesota courts is perplexing
because the Minnesota bench has not been occupied by evil jurists bent
on perpetuating racism. In fact, Minnesota has been blessed with
individual jurists of the highest integrity and competence. Further,
there are cases in which the court has addressed difficult issues
involving racial bias in uncompromising fashion, clearly and effectively
denouncing invidious practices. For example, State v. Russell represents
a bold decision attacking laws that have the effect of unfairly
discriminating on the basis of race. The Court in Russell held that the
statutes punishing possession of crack cocaine--a product used
predominantly by Blacks--with sentences substantially greater than those
for possession of cocaine powder-- predominantly used by
Whites--violated the Equal Protection Clause of the Minnesota
Constitution. The decision was controversial and creative, showing that
the Minnesota Supreme Court is able to assume a leadership role in
combating racial bias in the criminal justice system. Far too often
since Russell, the appellate courts have ignored or permitted racially
biased practices in the trial process and in the justice system as a
whole. Tolerance for biased practices permits, even emboldens, zealous
advocates to exploit these practices, believing that in doing so they
will maximize their chances of winning.
Given the court's occasional bold decisions and its public, extra-
judicial war on racism, the cases that accommodate racial bias in the
courtroom are difficult to understand. Frequently, the court tolerates
racial bias because it places a higher value on other principles, not
because of indifference to bias issues. Oftentimes, persons of color
charged with serious crimes, in attempts to have their convictions
vacated, make claims of bias. In the name of law enforcement or victim
protection, the appellate courts tolerate racial profiling and cultural
stereotyping by police and prosecutors. Appellate courts affirm
convictions obtained by testimony translated by unqualified interpreters
in violation of numerous rules and statutes, because the Minnesota
Supreme Court places a high value on judicial economy and law
enforcement. The courts look the other way when persons of color are
denied their rights to participate in the justice system as jurors,
accommodating concerns about crime prevention, judicial economy and the
adversary system.
Unless and until the justices of the Minnesota Supreme Court elevate
their concern for racial equality in the courtroom above concerns for
finality, judicial economy, and crime prevention, Minnesotans will
continue to read in the papers about racial injustices in our court
system, and persons of color in Minnesota will continue to feel the
imposition of racism in the legal system. Judicial economy, crime
prevention, and protection of the adversary system are important values.
In the context of the history of racial injustice in the court system,
however, they operate to perpetuate and encourage unequal treatment of
persons of color. The baseline for our justice system must be that all
people, including persons of color, resident aliens, new citizens, and
those with difficulty speaking English, receive equal justice under the
law.
As suggested above, this Article examines four specific areas where
the Minnesota Supreme Court has chosen to elevate other values above the
deterrence of racial or cultural bias in the justice system:
1) cases involving claims of inadequate translation by non-English
speaking defendants;
2) cases of racial and cultural stereotyping in the justice system,
including
a) racial profiling in police stops, and
b) the use of cultural evidence in criminal trials;
3) cases in which the court uses the harmless error doctrine to
avoid overturning convictions tainted by racial bias; and
4) cases in which obvious pretexts are used to permit the exclusion
of African American jurors.
In each of these areas, the court should take the simple step taken
in Brown fifty years ago: The Minnesota Supreme Court should stop
tolerating racial bias for any reason. |
