“Rather be judged by twelve than carried by six.” – Ice Cube
On Wednesday, the authors of the report titled The Gavel Gap: Who Sits in Judgement at State Courts? hosted a conference call to discuss their disappointing findings. During the call, law professors Tracey E. George and Albert H. Yoon discussed their original research, which found a woeful lack of minority and female representation among state judges. This state diversity report is quite revealing and well worth reading.
According to Nolo’s Plain-English Law Dictionary, the phrase “jury of one’s peers” means:
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The constitutionally guaranteed right of criminal defendants to be tried by their equals, that is, by an impartial group of citizens from the legal jurisdiction where they live. This has been interpreted by courts to mean that the jurors should include a broad representation of the population, particularly with regard to race, national origin, and gender….
When selecting a jury, the lawyers may not exclude people of a particular race or intentionally narrow the spectrum of possible jurors.
The state selection process for judges harbors no such guarantee, in criminal cases or otherwise. For their report, Professors George and Yoon extensively examined the biographical information of state judges throughout the country and compared the percentage of women and minorities on each state judicial bench to that of the state’s general population.
States were then graded based on how closely their benches reflected their populations, with states close to or at parity receiving an A, and states with a representation gap of 40 percent or more given an F. Through their research, Professors George and Yoon discovered that courts are not representative of the people whom they serve — that is, a gap exists between the bench and the citizens. They aptly named this gap the Gavel Gap. Highlights from their findings include:
- Forty-one (41) out of the 51 state judiciaries studied received either a D or F grade;
- White men are twice as represented on state judiciaries (approximately 58 percent) as in the general population (30 percent);
- Women are only 30 percent of state judges, yet they are 51 percent of the general population; and
- People of color make up just 20 percent of state judges, although they are 38 percent of the general population.
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Perhaps the rule of law varies throughout our country because “regions vary dramatically in the racial and ethnic composition of their courts.” As Cornell Law School notes, “race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility… Judges hold implicit racial biases. These biases can influence their judgment.”
As I have previously mentioned, implicit or unconscious bias is a mental shortcut “that fills in gaps in our knowledge with similar data from past experiences and cultural norms.” It is a normal part of how we make decisions. Unconscious racial bias pervades our law, education, and politics.
Earlier this year, I called out the New Jersey Supreme Court for looking like your local country club — instead of reflecting the demographics of the state’s general population. But the same could be said of numerous other state courts. In many courts, diversity is a heartbeat away from becoming non-existent.
If judicial diversity is essential to helping our judiciary deliver equal justice, restoring the public’s faith in the legal system, and countering perceptions of systemic bias that currently exist, then why do we continue to allow diversity in our nation’s judiciary system to wither on the vine?
Renwei Chung is passionate about writing, technology, psychology, and economics. You can contact Renwei by email at [email protected], follow him on Twitter (@renweichung), or connect with him on LinkedIn.