Public Interest

DOJ Reports Prompt Missouri Supreme Court To Launch Commission On Racial Fairness

Missouri is taking some action on the DOJ reports.

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Over the last fifteen months, it’s become abundantly clear that racial disparities are a serious problem in Missouri’s legal system.  

First, in the aftermath of last year’s police shooting of Michael Brown in Ferguson, Missouri, the United States Department of Justice launched an investigation and released a report finding that “the harms of Ferguson’s police and court practices are borne disproportionately by African Americans, and there is evidence that this is due in part to intentional discrimination on the basis of race.” Indeed, DOJ concluded that “the racially disparate impact of Ferguson’s practices is driven, at least in part, by intentional discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.”  

Then, following up on an investigation launched well before the events in Ferguson, DOJ released another report, this time finding that the St. Louis County juvenile justice system “violates the rights guaranteed to Black youths under the Equal Protection Clause of the Fourteenth Amendment.” I covered DOJ’s St. Louis County report here and wrote that I found the extreme disparities it laid out to be shocking.

When the Department of Justice issues two reports touching on a state’s legal system in one year, both finding broad racial disparities rising to the level of constitutional violations, you’d expect that state to take notice. And Missouri has.

Last week, Chief Justice Patricia Breckenridge of the Missouri Supreme Court announced the formation of a new “Commission on Racial and Ethnic Fairness” with a broad mandate to address the sorts of racial disparities identified in the Department of Justice’s reports. In fact, according to St. Louis Public Radio, when Chief Justice Breckenridge made the announcement at a Missouri Bar meeting, she (unsurprisingly) “cited findings in [the] two Department of Justice reports… as reasons for forming the commission.” The Public Radio piece quoted the Chief Justice on at least one of the reports, too: “The… juvenile report raised issues including racial disparity in the disposition of cases, insufficient legal representation for juvenile offenders, and questions about our juvenile court structure.” The commission’s job is to respond to those issues.

So the motivations for forming the commission and its mission are straightforward enough — but what exactly is it going to do?

The order establishing the commission is pretty clear. First, the court assigns the commission several background tasks — a sort of fact-finding mission. The commission shall:

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  • “Identify any barriers to access and fairness in the judicial system and legal profession”;
  • Review all rules, laws, and “other materials” necessary to develop recommendations;
  • “Seek public input and engagement” through various means; and
  • “Conduct… surveys and study additional research regarding racial and ethnic equity in the justice system and in the legal profession.”

After the commission has treasured up enough facts, it is directed to focus in on policy. Specifically, it may (but is not required to) consider, among other things:

  • Potential changes to rules, laws, and court practices designed “to improve meaningful access to or participation in the judicial system and the practice of law by racial and ethnic minorities”;
  • Other measures the court could take “to ensure that all persons within the judicial system and practice of law refrain from manifesting bias or prejudice, by words or conduct, based on race or ethnicity”;
  • Additional “measures to address any implicit or other bias within the judicial system and legal profession”;
  • And, finally for our purposes, “measures to enhance racial and ethnic diversity in the selection, retention and promotion of judicial officers, court staff and professionals in the legal community.”

The end goal of this fact-finding and policy assessment is supposed to be a set of recommendations that “the commission may act to implement… as authorized by the Court.”

The order lays out some logistical constraints on this process, too. The Court gives the commission about eight months to put together an “initial report,” which must be filed on or before June 1, 2016. Presumably this report is intended to contain the commission’s recommendations on the policy considerations identified above. Then additional “annual reports” must be filed on or before each January 1 from 2017 on.

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We’ll see if the Commission on Racial and Ethnic Fairness comes up with some aggressive ways to address Missouri’s current issues with racial bias on the courts (or… not so much, as is often the case with commissions like these). Both the Commission and the state certainly have moral and pragmatic reasons to move toward real change — not only is eliminating racial bias the right thing to do, but there are also those pesky unresolved DOJ reports hanging over the whole process.

Speaking of which, what’s the latest news on repercussions from Justice’s St. Louis County juvenile justice report? St. Louis Public Radio reports that Missouri and Justice are still in negotiations — as recently as October 5, “a spokeswoman for the attorney general said the conversations are ongoing.”

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].

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