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Pervasive Racial Bias in Courts Requires Transformative Social Change

Racial bias in the courts is one more avatar of the pervasive, systemic racism that exists in our society at large.

A group of Black Lives Matter protesters hold a rally in front of Kentucky Attorney General Daniel Cameron's home on October 24, 2020, in Louisville, Kentucky.

A new report commissioned by New York State Courts found substantial racism throughout the state’s court system. The report recalls egregious stories of racial bias, such as white court officers posting racist images on social media, using the n-word or referring to Black people as “monkeys,” or judges mistaking Black attorneys for criminal defendants. This report reflects a growing chorus of state courts throughout the country grappling with how to best address systemic racism. While the revelations in the New York report may feel like a splash of cold water to some — and generate eye-rolls from others — ultimately, it only scratches the surface of the pervasive racism in our judiciary.

The judicial branch of government is supposed to be unbiased, fair and impartial. After all, it is the nonpolitical branch of government. But what if it is not? The passing of Justice Ruth Bader Ginsburg in 2020, followed by the confirmation of Amy Coney Barrett to the United States Supreme Court, has spotlighted the deeply consequential role of the judiciary in challenging or perpetuating systemic racism. Indeed, the pursuit of equal justice under the law also requires the federal and state court systems, more broadly, to confront the reality of systemic racism and to take action.

Over the past decade, a growing number of state courts have created anti-bias initiatives for state court judges, court officers and juries. At the same time that anti-bias trainings have become more commonplace in the United States, the Trump administration is set on reversing course by fervently attacking anti-racist public discourse. On September 22, President Trump signed an executive order barring federal contractors from workplace trainings that discuss racial and gender bias, or that teach critical race theory. Despite the efforts of the Trump administration to restrict anti-racist discourse, state courts all across the U.S. have issued statements acknowledging institutional racism, implicit bias and the need for collective action.

In fact, the New York report on racial bias in the courts was commissioned by New York State Chief Judge Janet DiFiore precisely in response to the Black uprisings in 2020. The revelations in the report show a pattern of bias that pervades the court system. The legal team that prepared the report interviewed almost 300 people throughout the court system.

Unsurprisingly, similar accounts of pervasive bias exist in other jurisdictions. In California, the Commission on Judicial Performance documents a vast compilation of judicial misconduct involving rampant bias. For example, a California judge referred to a court reporter of Japanese heritage as “little Buddha head.” Another judge referred to a Black defendant as a “good boy.” And another judge told a defense attorney who was born in Ecuador to “lose the accent.” The totality of these cases of racial bias break the misconception that bias is aberrational or isolated to a single individual, courthouse or state.

As important as identifying and challenging interpersonal bias in the courts is, systemic racism is more than simply interpersonal bias or prejudice between individuals. One of critical race theory’s most significant critiques of traditional anti-discrimination law is of how narrowly the law defines racism and racialized harm, and what are legally permissible remedies for that harm. Legal scholar Alan Freeman calls this the perpetrator perspective — a perspective that sees “racial discrimination not as conditions, but as actions, or series of actions, inflicted on the victim by the perpetrator.” This approach individualizes racism as harm committed by a perpetrator against a victim. It ignores the conditions that produce discrimination to begin with.

In contrast, Freeman provides an alternative view of discrimination called the victim perspective, where “racial discrimination describes those conditions of actual social existence as a member of a perpetual underclass.” The victim approach to racial discrimination suggests that the problem will not be solved until the conditions associated with it have been eliminated. Similarly, Kimberlé Crenshaw, a founding critical race theorist and law professor, wrote in “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law that civil rights laws need to address the “societal commitment to the eradication of the substantive conditions of Black subordination.”

While the New York report gestures to some of the institutional dimensions of racism in the courts, it just does not go far enough. Specifically, the report acknowledges how under-resourced and overburdened the courts are, especially in the housing, family, civil and criminal courts in New York City, whose litigants are disproportionately people of color. The report will even use words like “dehumanizing” and “second-class system of justice” to describe the experience for litigants of color in court. But the scope of the report is largely focused on issues of bias and addressing incidents of interpersonal discrimination, and its recommendations are limited to anti-bias trainings and developing protocols for bias complaints.

We must be clear that court reforms to address interpersonal racial bias only scratch the surface of systemic racism. As important as anti-bias trainings and developing complaint protocols are, like increasing judicial diversity, such measures only address the symptoms but not the root causes of systemic racial inequality. The solutions we need require changing the conditions that reproduce racial inequality — this includes changing laws and policies, and the redistribution of resources away from policing and prisons to investment in housing, education, jobs and health care for directly impacted communities.

In criminal court, what were the conditions that precipitated the defendant’s arrest? There is racial profiling and racially disparate treatment in policing to prosecution and in every step of the criminal legal system. There is racially disparate policing for all kinds of offenses like fare evasion, and more recently, social distancing. Until we reckon with racist policing of Black and Latinx communities and criminalization of poverty, nothing will change.

Court reforms to address interpersonal racial bias only scratch the surface of systemic racism.

In housing court, what were the conditions that precipitated a tenant’s rental arrears? How does the racial wealth gap, ongoing racial discrimination in hiring and employment opportunities, and pay disparities on the basis of race and gender affect housing insecurity? And even during this pandemic, there are higher deaths, more layoffs and unemployment among communities of color. The economic consequences of these conditions are what produce disproportionate housing insecurity and homelessness for Black and Brown communities. This analysis can be applied to other courts and legal proceedings that disproportionately regulate the lives of low-income communities of color.

Until we address the systemic nature of racism in our society, on all fronts, nothing will substantially change in our courts alone. Kimberlé Crenshaw once said: “When there’s no name for a problem, you can’t see a problem. When you can’t see a problem, you can’t solve it.” Exposing racial bias in the courts is important work, and we must duly reckon with explicit and implicit bias of judges, attorneys, juries and court officers. Simultaneously, we must see that systemic racism in our courts go beyond interpersonal bias. Racism operates in the court system because of the pervasive and systemic nature of racism in our society at large. Only by confronting the full reality of systemic racism can we craft recommendations and implement solutions that address the root causes of racism and not simply mitigate its symptoms.

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