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 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).


Judicial Toleration of Racial Bias: Introduction
Tolerating Inadequate Access to Competent Interpreters
Tolerating Racial and Cultural Stereotypes in the Justice System
Tolerating Trial Errors Involving Issues of Race and Culture
Tolerating Racism in the Selection of Jurors
Judicial Tolerance of Racial Bias: Conclusion