How can New York change its court culture?

In June, New York Court of Appeals Chief Judge Janet DiFiore commissioned a report on the state’s court system, after a series of protests against systemic racism. The report, which was released Oct. 1, revealed that the courts treat people of color differently than white people going through the system, as well as those who work in it, and it has had a “dehumanizing effect.”

The court system outlined a plan of action following the release of this report – which was prepared by Jeh Johnson, the former secretary of the U.S. Department of Homeland Security – that includes a “zero tolerance” discrimination policy, instituting implicit bias training, making it easier to place complaints regarding apparent biases, along with other changes. However, it’s unclear whether these solutions can or will solve the problem at hand: changing the court system’s racist culture.

Experts familiar with the court system’s inner workings, as well as its racial biases, said that it will take more than bias training and zero tolerance policies to create systemic change. In addition to the changes that the courts plan to make, the experts also said reconfiguring its hiring process and implementing clear reforms and policies to address recurring issues could make a significant impact.

For many working within the court system, it’s understood that in order to maintain a sense of professionalism, employees have to ignore blatant racism. “It (racism and sexism) has become so ingrained into the culture (of the court system) that there is an underlying and silent expectation that people just put up with it and it’s part of being professional, having a thicker skin,” Leah Goodridge, a supervising attorney at Mobilization for Justice, who has spent years working in Housing Court, told City & State. “So instead of people challenging the racist behavior, for example, the burden has shifted to the person who bears it – and that is not limited to attorneys; sometimes it’s judges as well.”

This may be a result of the lack of people of color working in the system, from court officers to judges. The court system’s report indicated that most of its judges were white, despite most defendants being people of color. One reason for this disparity has been attributed to the review process for appointing judges in the state, which requires prospective judges to go through a screening process that is primarily overseen by white judges.

The report also noted that most of the court system’s programs aimed at promoting diversity and inclusivity recently lost funding, which has made diversifying the system more difficult. The cuts to these programs may also signal to others that diversity is not a top priority for the court system. “We all understand budget constraints but what that (cutting funding for diversity initiatives) does is signal the values and priorities of the system,” Kimberly Barsamian Kahn, an associate professor of social psychology at Portland State University, who specializes in police biases, told City & State. “When we’re talking about how these norms are propagated, when you’re seeing things like that, well, that’s contributing to people tolerating these types of racist statements.”

Many of the state’s high-volume courts, such as housing, family, civil and criminal courts, which primarily serve people of color, are often without adequate staff, which ends up leaving them overburdened. According to the court system’s report, of the individuals interviewed to assess its issues, which included court officers, judges and attorneys who work within the court system, “went so far as to allege that deliberate choices have been made over the years not to address the persistent problems that have an undeniable racially disproportionate effect.”

The lack of investment in these areas has similarly shown individuals that pass through them that they are not a priority. Worse still, allowing these courts to become overwhelmed and understaffed has created a situation ripe for racism and implicit biases to persist. “When we’re tired, when we’re distracted, when we have to make quick decisions, when there’s a lot of stimuli in our environment, those are all the situational characteristics that make it more likely that we rely on our automatic processing based on implicit associations because we don’t have the extra time, motivation or the opportunity to deliberate to engage in more conscious, thoughtful, purposeful, explicit judgments or thinking,” Kahn said.

Beginning from the point of arrest all the way through the legal process, people of color are disproportionately arrested and they receive longer sentences than white defendants, showing racial bias throughout the criminal justice system. This has helped perpetuate negative and racist perceptions of people of color. “At the same time, the overwhelming majority of the civil or criminal litigants in the Housing, Family, Civil and Criminal courts in New York City are people of color,” according to the report. “The sad picture that emerges is, in effect, a second-class system of justice for people of color in New York State.”

While there have been growing calls to mandate bias training, not just in the court system but in other industries, data has not shown that this training has had much of an impact on those who received it, according to several studies.

“Even though I was the first to use the phrase ‘implicit bias’ in print in its present meaning (in 1995) I am not a fan of ‘implicit bias training,’” Anthony Greenwald, a psychology professor at the University of Washington who studies implicit bias, told City & State in an email. “Public and media understanding of implicit bias are not aware of what has been learned from scientific research. ‘Implicit bias training,’ even as expensively done by NYPD and other police departments, has not been demonstrated either to undo implicit biases or to ameliorate racial disparities in policing.”

Kahn also pointed out that the examples of various racist incidents detailed in the report were explicitly racist – not implicit. “The explosive statements (in the court system’s report) comparing African Americans and monkeys, and nooses, using Sean Bell as a target practice – just to be really clear, none of those are implicit,” Kahn told City & State. “Those are not good motivations. Those are not reflective of implicit attitudes. Those are absolutely illicitly racist statements and dehumanizing. So, if you’re trying to target explicit bias, implicit bias training is not going to necessarily match that.”

While Kahn conceded that implicit bias training was a good first step, reforms to eliminate the possibility of making decisions that could be guided by implicit or explicit racism need to be made. Kahn said the report stated that Black defendants were much more likely to end up in handcuffs while appearing in court for “minor infractions” than white defendants. If there was a policy that mandated that all defendants were not to be handcuffed or were to be handcuffed while appearing in court for low-level crimes, it would eradicate the possibility of any biases stepping in. “When things are more ambiguous and we have more leniency or flexibility in the norms or rules, that’s where bias also sort of fills in those gaps,” Kahn said. “When we can instead have clear policies that are uniform amongst all defendants, that if they’re in for these offenses, they’re in handcuffs or not, and then that is strictly applied to everyone, that is going to be a more systemic reform because it takes away that ability for our stereotypes to kind of fill in that ambiguous information and maybe perceive that the Black defendant is more of a criminal or more violent or aggressive and is going to need handcuffs for this minor offense.”