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Boston Bar Journal

Going Beyond Equality and Striving Toward Equity: Addressing Systemic Racism and Bias in the Courts

June 14, 2022
| DEI Special Edition 2022

By: Chief Justice Paula M. Carey

State court systems must provide services and deliver justice in a manner that inspires public trust and confidence. All individuals must be treated fairly and impartially in every interaction with the court system. To achieve public trust and confidence, the existence of systemic racism in the courts must be acknowledged. Specifically, courts must recognize that Black and other individuals of color who have contact with the legal system are often not treated equitably or with the same dignity and respect as their white counterparts. A compelling illustration of this idea is that “Equality is giving everyone a shoe, equity is giving everyone a shoe that fits.” The Massachusetts Trial Court has embarked on an intentional journey to address issues related to diversity, equity, and inclusion.

Over the last decade, numerous studies have documented how racial disparities and high rates of incarceration in our nation’s criminal justice system have had a devastating impact on communities of color. Massachusetts has one of the lowest overall incarceration rates in the nation, but some of the highest rates of disparity in incarceration. As the late Supreme Judicial Court Chief Justice Ralph Gants noted in his 2016 State of the Judiciary speech, data collected by the Sentencing Commission showed that while the national rate of imprisonment for African Americans was 5.8 times greater than for whites, in Massachusetts, it was nearly eight times greater. Moreover, as a nation, in 2014 the rate of imprisonment for Hispanics was 1.3 times greater than for whites; in Massachusetts, it was nearly five times greater. After acknowledging these disparities, Chief Justice Gants announced that he had asked Harvard Law School to convene a team of independent researchers to analyze the data and “find out why.”

After four years of research and review, in September 2020, Harvard released the results of its study in a report entitled “Racial Disparities in the Massachusetts Criminal Justice System.” Based on available data from 2014 to 2016, the researchers found that “Black and Latinx people sentenced to incarceration receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer, and Latinx people receiving sentences that are an average of 148 days longer.” The researchers also concluded that defendants of other races, including Asian, Cape Verdean, Native Hawaiian/Pacific Islander, American Indian/Alaskan, and Other Race/Multi-Race received longer sentences than their white counterparts. Furthermore, the regression analysis utilized in the study “indicates that even after accounting for factors such as criminal history and demographics, charge severity, court jurisdiction, and neighborhood characteristics, Black and Latinx people are still sentenced to 31 and 25 days longer than their similarly situated White counterparts.” While the Harvard study was limited in scope due to obstacles relating to data, the overall conclusion was anticipated, and led the Trial Court to further prioritize its efforts to address systemic racism.

Even before the publication of the Harvard report, the Massachusetts Trial Court engaged in comprehensive efforts to address issues of bias impacting both criminal and civil cases within the court system. These efforts have resulted in a systematic and transparent approach to our work that includes data collection, experiential training, and accountability.

The Trial Court began its intentional journey to address issues related to diversity, equity, and inclusion in 2013, after a survey reflected that judges of color and female judges had been treated differently based upon their race or gender. In examining these issues, we now understand that disparities did exist, and this conclusion led to the reflection that, if judges experienced this treatment, our employees and court users were likely having similar experiences.

In September 2015, the Trial Court held a conference to open a dialogue among Massachusetts judges about implicit bias in the work they do every day across the Commonwealth. Following the conference, each of the seven Trial Court departments developed and provided implicit bias bench cards to all judges and magistrates.

In 2016, the Trial Court established a Race and Implicit Bias Advisory Committee (TRIBAC) to address bias issues related to race and gender within the organization. The Trial Court also established a Trial Court Office of Diversity, Equity, Inclusion & Experience (ODEIE), which works to create an inclusive culture and support continuous systemic improvement within our system. In connection with these efforts, the Trial Court retained two nationally recognized consultants from Columbia Law School’s Center for Institutional and Social Change (CISC) to help develop strategies for the Trial Court to address racial bias and construct a leadership curriculum. Working together, Trial Court leadership, TRIBAC, ODEIE, and CISC sought to transform Trial Court culture by integrating diversity, equity, and inclusion efforts into all aspects of court operations, including recruitment, hiring, training, conflict resolution, and strategic planning. The Trial Court developed and implemented a system-wide, evidence-based curriculum and methodology that brings together employees with different roles and identities and builds the capacity to engage and address issues related to diversity, equity, and inclusion of employees throughout the court system. Our objective is to build a self-sustaining infrastructure, so that issues surrounding race and bias remain at the forefront for all Trial Court employees and leadership. Court leaders and staff also collaborated to create a video urging everyone inside and outside the court system to be an “Upstander” – to stand up against acts or words reflecting conscious or unconscious bias.

The Trial Court has implemented strategies to eliminate racism and bias through several programs administered by ODEIE. Our Leadership Capacity Building Workshops are designed to support judges and court staff in leading difficult conversations on race and identity and addressing issues involving diversity, equity, and inclusion. Additionally, nearly all Trial Court personnel have completed the Signature Counter Experience training – a program centered around customer service and designed to ensure that all court users are treated respectfully and professionally. ODEIE’s program Beyond Intent: Understanding the Impact of Our Words and Actions educates court personnel about the impact of words and actions on the development of a safe, healthy, and inclusive workplace, and identifies actionable steps to embed more inclusive practices into daily practices. ODEIE’s Cultural Awareness and Racial Empathy (CARE) program is an opportunity for all Trial Court employees to engage in safe discussion and dialogue with each other to gain a greater understanding of the history of the marginalization of communities and individuals of color, and to reflect on their personal identity and the identity of others.

In 2019, the Trial Court established the Trial Court Office of Workplace Rights & Compliance (OWRC) to address and investigate concerns and complaints of discrimination, harassment, or retaliation involving protected classes including race, gender, and disability. OWRC is also responsible for enforcing the Trial Court’s Policy Prohibiting Discrimination, Harassment and Retaliation, which was promulgated in 2019, and applies to employees and court users.

In the summer of 2021, the Trial Court convened the Committee to Eliminate Racism and Other Systemic Barriers. The committee is taking a different approach to address critical issues that impact racism, and its members are reviewing court systems and processes through the lens of racism and other barriers to ensure justice and fairness throughout the court system. The committee is charged with advising the Chief Justice of the Trial Court and the Court Administrator regarding policies and initiatives to address institutional racism and systemic barriers based on race, ethnicity, gender, gender identity, sexual orientation, mental or physical disability, age, socioeconomic status, or other matters of identity that may give rise to inequity among Trial Court users, judicial officers, or court personnel. The committee’s nine working groups are working on several initiatives, including data collection for civil matters, employee mentoring, an updated social media policy, an affinity group for employees, and proposed jury data collection changes. This collaborative approach, with internal and external stakeholders to study and review, is essential to moving the system forward.

Another means of addressing racial and ethnic inequity in our legal system is by increasing the diversity of court personnel. A more diverse workforce brings a broader range of perspectives into the courts and helps to educate us all about the experiences of those who are different from us in race and ethnicity, as well as in gender identification, sexual orientation, or class background. A court workforce that mirrors the diversity of our Commonwealth also promotes litigants’ trust in the equity of our judicial system. As stated in the Trial Court’s Strategic Plan 3.0, “we want our workforce to reflect the diversity of our users and to be culturally competent and welcoming.” Accordingly, we have made it a strategic priority to increase the diversity of our workforce through recruitment, outreach, career development, and promotion. To measure progress toward this goal, the Trial Court instituted an Annual Diversity Report. These reports show an overall increase in Trial Court employees who are members of racially/ethnically diverse groups from the publication of the initial Diversity Report, issued for Fiscal Year 2017. The Trial Court has also made improvements in the percentage of racially and ethnically diverse employees in its managerial ranks. Each year, we celebrate our increased diversity with our annual cultural appreciation events that encourage court staff to share and learn more about each other’s cultural heritage.

Notwithstanding these efforts, there is still much work to do to root out bias in all aspects of our court operations. After the release of a 2021 report from the Supreme Judicial Court’s Committee on Lawyer Well-Being, summarizing a series of Town Hall meetings with Affinity Bar members, we learned of the negative experiences of many attorneys of color when engaging with our court system. In response, we began meeting with Affinity Bar leaders to engage in open dialogue to collaborate on strategies the Trial Court could undertake to address the issues raised. We have taken steps to facilitate discussions on how to best interact with court users in a more respectful and culturally proficient manner.

We recognize the importance of open communication and direct outreach to communities of color, so that we can better understand the experience of these communities in our courts and can work to address their concerns. Massachusetts was among six states chosen by the National Center for State Courts (NCSC) to participate in a pilot community engagement program to collectively expand gateways to substance use treatment in the courts. Additionally, ODEIE has worked with local court and community leaders to hold a variety of public engagements designed to increase public trust and confidence in the courts by providing the opportunity for communities of color to share their experiences with the justice system and provide feedback on how we can become more equitable and just. Our Access to Justice coordinator, along with ODEIE organized several virtual Town Hall sessions which engaged local court leaders and officials to share information on court operations during the COVID-19 pandemic. Additionally, the Trial Court conducted listening sessions at houses of correction, in which judges and staff from the Massachusetts Probation Service and Trial Court Security Department met with detainees and heard about their experience with the justice system. The Trial Court also provided forums for internal listening sessions where employees shared their experiences working in the courts.

The Trial Court continues to collaborate with Harvard on issues related to race. One example is Harvard’s work on a quantitative analysis of the impact of the diversion and non-prosecution policy of the Suffolk County District Attorney’s Office. Additionally, the Trial Court maintains several public interactive dashboards that contain demographic and case information. The dashboards allow users to filter information using different data points. The Trial Court is also working with the NCSC to perform a diversity, equity, and inclusion analysis to estimate the demographic makeup of parties involved in select civil case types. Civil case types include Pathways in case types such as evictions, civil asset forfeiture, tax lien, debt collection and mortgage foreclosure.

As leaders of state court systems, we hold unique positions and need to be comfortable with being uncomfortable, because this work is not easy. We need to be more introspective about the fact that what we do, and what we fail to do, impacts the lives of others who have experienced the indignities of racism and injustice throughout their lives. We need to listen to the experiences of diverse populations as we work to change our systems. The time is now, and it will take all our collective efforts to eradicate racism in our justice system and beyond. Failure is not an option. As a nation, and as a system of state courts committed to equitable justice for all, we must not rest until we have eliminated these barriers.

Paula M. Carey retired as Chief Justice of the Trial Court in January 2022. She continues to work on issues involving Diversity, Equity, Inclusion in the Trial Court, which was a major focus of her work before her retirement.