As the nation confronts issues of racial justice and equitable treatment for all, state court leaders are looking at ways to reduce disparities in their operations—and at how efforts to modernize court procedures can help.
Many of these leaders see racial equity considerations as among the most critical they face as they update court operations and incorporate new technologies. Longstanding concerns about racial disparities may be most prevalent in the criminal courts, but they play significant roles in civil courts as well. How can the processes for dealing with housing disputes or civil debt claims proceedings be changed to ensure fair treatment of litigants regardless of race? Have reforms made it easier for people to represent themselves, whether in online or in court proceedings? And how does the availability of broadband services affect access to the courts for all?
Many of these issues were already being considered before matters of race and equal treatment under the law took on such national prominence following the death of George Floyd, a Black man, at the hands of Minneapolis police on May 25.
In July, the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) issued a resolution declaring that “state courts must ensure that all parties to a dispute—regardless of race, ethnicity, gender, English proficiency, disability, socioeconomic status or whether they are self-represented—have the opportunity to meaningfully participate in court processes and be heard by a neutral third party who will render a speedy and fair decision.” Subsequently, court leaders have identified steps that should be taken to reduce racial disparities and acknowledge that people of color, particularly Black Americans, have historically been treated differently by the legal system than their White peers. In statements and guidance, leaders of the CCJ and COSCA acknowledge that severe racial disparities are not just an unfortunate byproduct of a race-blind system, but the manifestation of discrimination embedded in the system itself.
Since Floyd’s death, 12 state supreme courts, 13 chief justices, and at least one municipal court have issued statements on racial justice that outline steps that would help to remove bias and foster more equal access to the court process. Among the proposed actions, they urged state courts to:
Examining current practices and policies helps to identify areas ripe for reform. In June, Kentucky established the Statewide Department Equity Committee, which is focused on reducing racial disparities within the courts. The panel will meet “quarterly to analyze data, determine areas of racial disparity, and discuss current strategies each department is implementing and areas of improvement.”
Similarly, the New Jersey Supreme Court Committee on Diversity, Inclusion and Community Engagement, the North Carolina School Justice Partnership, and the Faith and Justice Alliance, also in North Carolina, are partnering with trusted community leaders to review, revise, and monitor court practices and develop strategies to help ensure that those who have been marginalized historically have advocates who understand their unique needs. They are also working to guarantee that everyone can access court services in a welcoming environment. Partnering with stakeholders outside the legal system, particularly those trusted by communities of color, can help bring to light those policy areas most in need of reform and build greater confidence in the legal system.
Court leaders also emphasize the need for educating judges, clerks, and administrative professionals on racial disparities and how they play out in the legal system. They further assert the need to diversify the legal profession across the bench and bar, in part to help ensure that inequitable practices are not replicated.
As judges and court administrators move processes and services online, they face new challenges in ensuring that advances in technology are not creating adverse consequences based on race. For example, if a court requires electronic filing of documents in all debt claims cases—and Black communities within that jurisdiction are less likely than White ones to have access to broadband services—Black defendants may be less likely to respond to cases filed against them. That is why it is critical to develop approaches—in this case, perhaps providing access to the electronic filing platform at a public library or providing alternatives to electronic filing—that level the playing field for those who have been systematically disadvantaged.
Ultimately, efforts to assess and measure progress will allow courts to see whether steps they are taking have a meaningful impact on reducing racial injustice and increasing access to the courts. Courts can develop in-house strategies or work with third-party evaluators to help conduct studies that provide insight into both civil and criminal court practices and policies. Pew’s civil legal system modernization project is working to build the capacity of court systems to assess whether new technologies and other evidence-based solutions are improving equal access to courts. For example, Pew partnered with the University of Arizona James E. Rogers College of Law to evaluate Utah’s online dispute resolution (ODR) platform. This evaluation, based on direct user feedback, helped jurisdictions using ODR improve their platforms to ensure that all court users can access and successfully navigate Utah’s small claims process online.
As state courts modernize, leaders must acknowledge the role that courts nationwide have played in upholding institutional racism and take concrete steps to make their systems more open, efficient, and equitable. Focusing on the needs and experiences of court users when determining new or revised policies and procedures will help mitigate disparate impact. And making reforms that do not perpetuate systemic racism will help states develop court systems that are truly modern.
Erika Rickard is the project director and Amie Lewis is a senior associate with The Pew Charitable Trusts’ civil legal system modernization initiative.