| 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, 269-270 (Winter, 2002)(230
Footnotes Omitted)
The reasons that racism and cultural bias survive in our justice
system are complex and to some extent beyond the court's control. In our
adversary system, however, zealous advocates will use methods of
persuasion that are effective if permitted by the courts. Racism and
cultural stereotyping are extremely powerful forces in society and in
the courtroom. Whether in the name of crime prevention, judicial economy
or another seemingly benign justification, judicial toleration of racism
and cultural stereotyping encourages more of the same. Real progress in
combating racism and related cultural biases will only be achieved if
the courts are willing to elevate the values espoused by the Racial Bias
Task Force above competing values. The courthouse should be a place
above other places, a setting where minority citizens can expect strict
opposition to racism and cultural bias. Sadly, the effects of racism in
the courts go beyond the individual cases where racism is encountered.
The court should uncompromisingly fight racism and cultural prejudice,
employing strict deterrent rules in every area of law where these evils
arise.
The failure of the court to enforce laws requiring competent
translators in cases involving Asians and Hispanics continues to work an
extreme unfairness against those persons. The court's unwillingness to
grapple with the problem of racial profiling and police stops has
serious repercussions beyond the courtroom. By tolerating expert
testimony about cultural stereotypes in cases involving Hmong
defendants, the court is allowing evidence of supposed group
characteristics to prejudice jurors. Specifically, the court's
unwillingness eradicate this problem is apparent in cases involving
individuals charged with specific criminal acts. Persons of color are
still systematically excluded from juries, perpetuating the distrust
that minorities feel towards the justice system.
Brown v. Board of Education provides a model for analyzing judicial
approaches to racial and cultural bias; including the actions of the
Minnesota Supreme Court with regard to racism in the Minnesota justice
system. In Brown I the United States Supreme Court took its essential,
principled stand against segregated schools. The Minnesota Supreme Court
has essentially taken this step by denouncing racism in the justice
system in its public statements, through the Racial Bias Task Force and
in its administrative role. In Brown II, however, with its "all
deliberate speed" holding, the United States Supreme Court showed
what can happen when compromises are permitted to water down remedies
designed to fight racial discrimination. For over twenty years after
Brown I, little progress was made in desegregating schools. Real
progress was made only when uncompromising, deterrent remedies were
adopted. Contrary to the public message expressed by the Minnesota
Supreme Court and the Racial Bias Task Force, racism and cultural bias
continue to exist as the Minnesota justice system settles into the new
millennium. We believe they will continue to exist until uncompromising,
deterrent remedies are adopted by the court.
Strict judicial approaches to racial and cultural bias are needed,
especially now, when the forms of official discrimination and bias may
be less obvious than in years past. The Fourteenth Amendment's legal
tests have been formulated in terms of intentional racial bias and
exclude or minimize evidence of impact as acceptable proofs of official
bias. Hence, unconscious racism may create problems of judicial analysis
more difficult than those presented by more blatant forms of
discrimination. When every pretextual police stop is regarded as
nondiscriminatory, or when invented reasons for peremptory challenges of
black jurors are accepted, these practices become effectively insulated
from corrective action. In essence, the law refuses to see bias where
those in the community, and the minorities within that community, see it
quite clearly. Unless the Minnesota Supreme Court acts boldly, within
its judicial authority, the practices we have discussed here will remain
a cancer in the justice system.
. William Martin is Associate Dean for Faculty Development and
Associate Professor of Law at Hamline University School of Law. Peter
Thompson is a Professor of Law at Hamline University School of Law.
Professor Thompson served as appellate counsel for the defendant in two
of the cases discussed in this article, State v. King Buachee Lee, 494
N.W.2d 475 (Minn. 1992) and State v. New Chue Her, 510 N.W.2d 218 (Minn.
Ct. App. 1994). |
