Black and brown attorneys mistaken for defendants, a culture that “discourages compassionate treatment” of people of color appearing in court, a Facebook post depicting a lynching, and a host of other racial injustices are among problems “so extensive and systemic in nature” they require a wholesale overhaul of the New York state court system, an alarming report released last week concludes.
In short, the report commissioned by Chief Judge Janet DiFiore found that racial bias in New York courts has for decades produced “a second-class system of justice for people of color.”
In some cases, the injustice begins immediately upon entry, when white attorneys are waved through security while attorneys of color must present identification. Other times, the report found, it is quieter yet insidious, as when courts routinely call the cases of white respondents with private attorneys first, while people of color lose hours or days stuck in the waiting room.
At times, the injustice is more blatant, such as this June, when a Brooklyn court officer Terry Pinto Napolitano shared an image on Facebook that appeared to show the lynching of a Black man who resembled former President Barack Obama.
Following that incident, Difiore commissioned former U.S. Secretary of Homeland Security Jeh Johnson to assess the system as the Special Advisor on Equal Justice in New York State Courts. His report includes interviews with nearly 300 people involved in the court system, including sitting and retired judges, court attorneys, court clerks, court officers, court employee unions, reform groups, and bar and judicial associations.
The report did not name those who were interviewed in order to allow them to speak freely about their workplace.
But the consistency of the accounts and the range of incidents from racist slurs to microaggressions and destabilizing slights portray a deeply troubling climate for defendants of color. In one case documented in the report, a public defender described watching a court-appointed attorney buy boots on her iPad while her client lost custody of her child in Family Court.
“The No. 1 complaint we heard from multiple interviewees from all perspectives was about an under-resourced, overburdened New York state court system, the dehumanizing effect it has on litigants, and the disparate impact of all this on people of color,” the report stated.
The persistent underfunding of the court system all but guarantees it will not have the resources and structures to serve all people equally, the report found. And almost always, it is people of color and those in poverty who suffer.
Among the worst offenders are New York City’s Housing, Family, Civil, and Criminal courts, which overwhelmingly serve poor people of color. Even the buildings in which Housing Court is held in Brooklyn and the Bronx are “atrocious” and “inadequate,” according to interviewees. The state’s failure to allocate resources to these city courts is “the very definition of institutional bias,” said one judge.
Regulars in the New York Family Courts interviewed in reaction to the report described the daily incidents faced by people of color as only the superficial appearance of a deeper and long-standing pattern of injustice. Those who don’t arrive at their hearing in professional clothes are looked down on and sometimes reprimanded by judges.
Lauren Shapiro, managing director of the Family Defense Practice at the nonprofit Brooklyn Defenders said concerns with Family Court are not limited to individual instances of racial bias, “but with the systemic racism and oppression embedded in the system that touches everyone who walks through the courthouse door.”
“Families entering court are greeted by metal detectors, armed court officers, long lines, and a punitive, confrontational and dehumanizing system that fosters tension rather than rehabilitation or assistance,” she said. “Basic human dignity is denied: parents cannot carry snacks for toddlers, and nursing mothers have no private option to breastfeed their children.”
Judges, especially those working in Family Court, identified high case volume as the biggest source of racial bias. A group of Family Court judges surveyed told report authors that “if a judge has time to slow down, unpack the case before them,” he or she is “more likely to second-guess their own assumptions and biases.”
Last year, Judge DiFiore proposed a plan to make the system more efficient by consolidating the current 11 courts into three tiers, including merging Family Court into the larger state Supreme Court. While such a move would help, the report found, it will be far from enough to ensure the courts provide equal access to justice to all.
Over the years, a number of internal groups have been organized and tasked with handling instances of racial bias and training court staff on how to prevent it. But the report found these efforts have proven inadequate — and in some cases are so rarely used or publicized that even judges are not aware of them, let alone court staff or those appearing in court.
Each year, for example, the state’s Inspector General for Bias Matters typically receives 10 or fewer complaints of racial bias that it deems worthy of an investigation. Unaware the position already existed, a group of judges suggested creating it anew. Meanwhile, the state Office of Diversity and Inclusion was recently cut from eight staff members down to two.
Since 1991, the Williams Commission — a standing group of judges, lawyers and court administrators formed to continue the work of the first “Minorities Commission” — is responsible for monitoring racial bias complaints, collecting and analyzing race data, and suggesting methods for correcting problems. But today its activities focus more on professional development and community building, rather than investigating court processes, the report found. Several interviewees describe it as “running out of steam.”
One of the report’s key recommendations is to reconstitute these existing oversight bodies with clearer purpose, and charge them with reviewing any proposed rule changes, legislation or regulations for potential bias or disparate impact on people of color.
Additionally, regular training on recognizing and combating implicit bias should be required for all judicial and nonjudicial court personnel, the report said. Currently, approaches to bias training vary widely across the state. It is included in the weeklong training for new judges each year, and is sometimes part of the required summer seminars for sitting judges.
However, in most courts, other employees — such as officers, clerks and attorneys — do not receive regular training on implicit bias. Only the Third Judicial District, which runs from Sullivan County to Albany, recently began mandating bias training for all courthouse employees.
Further, court officers are consistent sources of a “culture of toxicity and unprofessionalism” reflected in their treatment of litigants, their families and attorneys of color, according to the report. Black and brown attorneys in some local court systems regularly encounter so many racist incidents, they keep a running tally on a shared Google Doc.
One public defender recalled being in an elevator with her clients, a group of Black teenagers, when a court officer told one he would “always be a (racial slur).” The incident was reported, but the officer was not disciplined. At a Christmas party, another court officer’s supervisor declared that Black people were “lucky” to be allowed to be court officers.
Yet far more often, racial bias shows up in the disparate treatment of clients of the courts by court officers, who are more likely to bully, belittle or reprimand people of color, according to interviewees.
To fix this hostile environment, the report calls on court leadership to clearly and frequently articulate a commitment to eradicating racial bias. It also suggests a strict social media policy for all court employees, as well as training that “helps court officers understand that they are pivotal players in the administration of justice, and are not simply there to keep order.” Most simply, it calls for court officers to wear name tags, similar to police officers.
Finally, the report calls for the Office of Court Administration to develop a standard way to educate jurors about implicit bias before they are questioned by attorneys during jury selection. Judges should allow attorneys to question potential jurors about racial bias, it says.
Without such changes, both the perception and the reality of New York’s “second-class system of justice” for people of color are likely to persist for years to come, the report says.
For millions of New Yorkers of color, that means one thing, said Jeanette Vega, an advocate for parents with child welfare cases.
“If you’re a Black or brown person, when you walk into the courtroom, everyone you see in the waiting room is the same color as you, and everyone standing up in front is usually white,” she said. “You automatically assume that you’re doomed.”