The Effects of Diversity in the Office

By Patricia L. Gatling and Majorie Heidseick

“A prosecuting attorney assumes high duty, and has imposed upon him grave responsibilities. He may be the means of much good or much mischief. Interests of vast magnitude are entrusted to him; confidence is reposed in him; life, liberty, character and property should be protected by him. He should guard, with jealous watchfulness, his own reputation, as well as that of his profession and the court.”1

Editor’s Note: This article will also appear in the upcoming new edition of the Prosecutors Deskbook. See the next issue of The Prosecutor for ordering information.

Introduction

Most prosecutors would agree that the profession has withstood many changes since 1972, when the New York State Bar Association published the above statement of prosecutors’ ethics. Most notably, the references to prosecuting attorney as he and him have become obsolete. Notwithstanding, the subtext of the drafter’s message was as clear then as it is now: the reality is that the occupation of prosecutor continues to be dominated by the he lawyers of the profession.

In 1972, there were female prosecutors in offices throughout the State of New York but their roles and contributions to the profession went largely unnoticed by one of the largest and most influential bar associations in the nation. Equally disappointing is that today there has been minimal effort to diversify many prosecutors’ offices across the country. Many offices remain dominated by white men, creating an imbalance of women and minority lawyers. I would argue that this is unfair, because society needs and deserves full and fair representation of all ethnic groups and both sexes, for both the population served and the society at large, for practical reasons which will be discussed in this article.

In contemporary society, prosecutors are charged with a dual role. On one side, they are representatives and enforcers of the law, and on the other side, they are educators, watchdogs, and crime preventors. In either set of circumstances, it is incumbent upon prosecutors to understand the communities they represent and treat them equally at all times.

For innumerable reasons, communities across the country—and especially inner-city neighborhoods—have evolved into enclaves of people representing a hodgepodge of racial, ethnic and religious backgrounds. Like it or not, these people often view law enforcement—including prosecutors—with hostility and resentment. As these neighborhoods and communities continue to attract people from all corners of the world, it becomes crucial for the prosecuting arm of law enforcement to be aware of and educated about the inherent differences that potentially impact the judicial process.

On diversity, author Ben Wattenberg has concluded:

…the United States is in the process of becoming the world’s first “universal nation.” Certainly, America is in the process of assembling an array of ethnicities and races unlike anything previously assembled. And, if we are wise we will choose to make that a virtue. We will realize that the differences various groups bring to the table represent a potential gold mine of fresh ideas, if only we learn to be open to them.2

The Perception of Bias in the Criminal Justice System

Supreme Court Justice Sandra Day O’Connor remarked in 1993, that “When people perceive . . . bias in a legal system, whether they suffer from it or not, they lose respect for the system as well as for the law.”3 Perception often becomes reality; and, in the case of the American judicial system, the perception among many is that the system exists solely to protect the majority and prosecute the minority.

Society admires and seeks truly skilled prosecutors with the ability to observe and absorb societal and demographic changes from the well of the courtroom. Given their exposure and experience, prosecutors must be more sensitive and more willing to accommodate the changing face of the American landscape.4 Prudent prosecutors look beyond the immediate mission and take the daily interaction with those unlike themselves as an opportunity to learn and absorb information about those they are charged with serving and protecting. An essential class, and one missing from law school curriculums, is that of effectively interacting with minority populations; it is only learned through real life experience.

The relationship between race and crime in America is an integral part of the criminal justice system.5 People of color have historically viewed the criminal justice system as an oppressive and insensitive institution that further burdens their community. Many prosecutors have been confronted with criminal cases motivated or at least explained by the perception of troublesome racial, ethnic, religious, or cultural differences. Past discrimination by law enforcement, compounded by what many Americans regard as historically unfair treatment in the courts, has fostered a negative perception of the judicial system by many people of color. Accordingly, there is a widely held belief in minority communities that they will not receive justice in a court of law. Today, this opinion remains deeply rooted and is passionately voiced despite 50 years of legal decisions and efforts aimed at eliminating discrimination in the legal system. In order for prosecutorial agencies to reflect the needs and, perhaps most importantly, to gain the support of the communities that they serve, it is crucial that chief prosecutors aggressively diversify their offices. Practicality notwithstanding, it should be morally mandated.

While legal decisions and laws have certainly improved access for people of color to public and private establishments such as schools, restaurants, hotels, etc., they have not been as successful at leveling the proverbial playing field of the real world. For people of color, equal access does not mean equal treatment in their daily existence.6 Those with whom they come in contact usually determine equal treatment.

It is well known that members of minority groups are arrested, charged and convicted in greater percentages than their majority counterparts. This reality, compounded by daily life experiences, the negative relationship with law enforcement, and the fact that in a demographically changing America, prosecutors’ offices remain dominated by a white male hierarchy, all support the perception that bias exists in the criminal justice system. Disparate sentencing (studies show people of color receive longer sentences than similarly situated non-minorities)7 and harsher treatment of juvenile offenders of color,8 further contribute to the prevailing belief that equal justice under the law does not apply to racial minorities.

In criminal courtrooms across the nation the outlook can be daunting for people of color. The accused is typically a person of color, who is often arrested, prosecuted and sentenced by a courtroom of white men and women. Often the jury may not be from the defendant’s own community. What is the impact of this unbalanced and demoralizing set of circumstances in the judicial system? Even if every agent in the criminal courtroom involved in the dispensation of justice acts fairly, ethically, and beyond reproach, the fact remains that the perception of bias exists within certain segments of the community. Based solely upon appearance, people of color could thereby conclude—and many do—that the law exists only to serve and protect the majority, not the minority.

The Utah Bar Association’s study of bias in the courts concludes that, “the perception of bias even if it is groundless is as damaging as actual bias.”9 As Justice Frankfurter said in Offutt v. United States, “…justice requires the appearance of justice.”10

To date, 30 states and several federal circuits have commissioned reports on diversity in their respective legal systems. Consequently, they have established diversity task forces to address the issues of gender, racial, and ethnic discrimination (real and/or perceived) and its impact on fairness in the courts.11 Court diversity studies in Florida, Washington and Utah address in detail the integral role of prosecutors in the criminal justice system.12 Of the three state studies, only Florida and Washington examine the area of the exercise of prosecutorial discretion and its impact on fairness in the criminal justice system.13 The studies—both empirical and anecdotal—highlight and verify what prosecutors already know, that is, that the dominant role played by prosecutors in the dispensation of justice has a great effect on equal treatment and perceptions.14 The studies also explore and identify key stages of impact in the prosecution process, such as arrest, charging decisions and bail requests, as well as plea and sentencing recommendations. All of the reports concede that bias does indeed exist, and therefore adversely impacts people of color in the justice system.15

It is important to note that the goal of one of those studies, that of the Florida Racial and Ethnic Bias Study Commission, was not to determine whether the justice system was biased against minorities, but whether or not “racial or ethnic considerations adversely affect the dispensation of justice to minority Floridians.”16 It is significant that the Florida inquiry sought to identify the “policies and practices, which treat minorities unjustly, irrespective of whether the basis for mistreatment is malevolence, undue benevolence, or indifference.”17

Without focusing on prosecutorial discretion, most of the state commissions utilizing lawyer surveys drew conclusions similar to the Florida, Washington and Utah studies regarding the issue of the perception of bias in the administration of justice. All concluded that the opinions of black lawyers on these issues differ sharply from those of their white counterparts.18

When queried about the existence of discrimination in the courts, the majority of non-minority lawyers responded either that they never witnessed any discrimination, or that none existed in the courts. Conversely, lawyers of color and minorities responded that discriminatory practices were routine in the courts.19 It is clear that the issue of whether race negatively impacts the work of the courts depends on the racial perspective of the viewer, as well as the perceptions and experiences of the individual. Even the Supreme Court in Crawford vs. United States conceded, “the naturalness of bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence.”20

In conclusion, on the issue of real and/or perceived bias, empirical studies and anecdotes notwithstanding, Sir Walter Moberly, an English educator said it best: “the most pernicious kind of bias consists of falsely supposing yourself to have none.”21

Recruiting and Hiring

The first step in the process of diversifying a prosecutor’s office must be a firm and resolute commitment by the chief prosecutor that translates into a management priority and an administrative goal of the agency. The second step may require the creation of institutionalized diversity training for all levels of management. An unambiguous training program can positively heighten race and gender awareness throughout the agency. The third step is the creation of a multi-cultural work environment.

Since the mid-1960s, many privately held U.S. companies have developed initiatives targeting the recruitment and hiring of people of color. CEOs and managers in many of these companies assert that cultural diversity is critical to their future survival. They believe and understand that companies cannot continue to ignore the impact that demographic changes in the U.S. will have in the workplace and on their businesses.22

The Hudson Institute’s Workforce 2000 Report identified several key demographic trends in the United States that will dramatically impact organizational life in the twenty-first century:23

• The population and workforce will grow slowly;
• The average age of workers will increase;
• More women along with more minorities will enter the workforce; and,
• Immigrants will, for the first time since World War I, contribute the largest increase in the workforce.

The report concludes with the observation that, “although white males will continue to maintain a numerical edge in the next decade, they will constitute a shrinking percentage of the new entrants into the color pool. The new workforce will comprise greater diversity of gender, race, age, culture and language.24

The importance of the Hudson report cannot be underestimated in that it statistically confirms what most prosecutors know anecdotally: in jurisdictions—irrespective of the size—there are growing multi-cultural populations that are entitled to and, in fact, demand justice, without bias. For practical reasons, however, prosecutors’ offices should turn to the corporate world and borrow a page from the corporate policy on diversity. Corporate presidents and chief prosecutors are confronted with similar challenges in their responses to the issue of diversity with one significant difference. Corporations are motivated and respond to policies—or lack thereof—that impact profitability, whereas chief prosecutors respond to a moral obligation and a need to maintain credibility in the communities they serve.

The Higher Calling to Diversify

In a conversation regarding the recruitment of minority prosecutors, a chief prosecutor not long ago complained that he could not find any applicants. While some may view his frustration as unresponsive to the need to diversify, it also begs the question: where had he been looking?

Until recently, it was unremarkable for a prosecutor’s office to lack a diverse staff. Even today, the goal of diversifying is often not a priority in many prosecutors’ offices, perhaps because the identification of potential applicants of color requires the prosecutor to become proactive and undertake an aggressive recruitment approach. The truth is, without actively recruiting people of color they are difficult to hire. Prosecutorial agencies, assuming they hope to diversify, must develop and adopt comprehensive strategies to locate minority candidates and to address those issues that may prevent qualified candidates of color from applying.

Prosecuting agencies across the nation are conservative in culture. These offices may require aggressive efforts to shift to a culture of inclusion. It is therefore incumbent upon the chief prosecutor to develop and distribute a non-discrimination policy to all legal and non-legal staff.

While most offices have a non-discrimination policy, it is not always prominently displayed and distributed to the entire staff under the chief prosecutor’s signature. The presumption amongst many prosecutors is that a colleague will not discriminate in hiring practices because discrimination is morally reprehensible, not to mention illegal. This belief, however, is not easily conveyed to minority communities. A potential minority candidate might view the lack of a published non-discrimination policy as an indication that people of color need not apply.

Historically, many people of color who have been excluded from government institutions are reluctant to apply for employment in a prosecutor’s office. Placing advertisements in newspapers to encourage applicants of color stating, EEO/Equal Opportunity Employer or “women and minorities encouraged to apply” is no panacea. It alone may not be sufficient to attract minority applications. A successful recruitment campaign requires the development of a strategy that recognizes the history of mistrust between people of color and law enforcement and one that embraces cultural differences.

First, it is prudent to explore the subtle messages that have been conveyed to the public about the agency (e.g., its reputation as a fair employer). Begin with current employees who are minorities and people of color. Consult them about this issue. Employees can be an agency’s greatest advocate, or its worst nemesis. They are the ambassadors who voice their observations and experiences to countless people each day. Staff should be considered a promotional source that can vouch for the genuine or counter the superficial efforts of the agency’s minority recruitment initiatives.

The next step is a thorough review and analysis of the agency’s practice in charging, sentencing and plea agreement policies that perhaps adversely impact minorities and people of color. An agency cannot expect to attract candidates of color if it practices questionable or ill-defined charging and plea policies. Furthermore, professional growth and development is important to minorities, just as it is for non-minorities. Both are drawn to the prosecutorial profession to, among other things, enhance their careers. This requires a philosophy and practice of operation that fosters participation of all and a system that is just to all. The perceived lack of such practices is a red flag to minority employees that career growth in your office will be retarded. For example, if non-minorities hold all positions of power in the agency, the not-so-subtle message of “no room at the top” for people of color is conveyed, implying an absence of real commitment to diversify. Hence, the advancement of qualified and respected people of color and minorities, presently within the organization should be an important component of any strategy.

Establishing and aggressively building support networks for people of color and minorities will further assist with recruitment and retention goals. Whether formal or informal, support networks (e.g., mentor initiatives) encourage better knowledge and understanding of work place systems and cultural differences among employees.

Cultural diversity training can contribute to the creation of a multi-cultural and ethnic-friendly environment. The motto of the Lotus Corporation, for example, is: “…at Lotus, we speak diversity.”25

Community outreach initiatives serve as useful recruiting vehicles in the identification and recruitment of people of color. Like staff employees, members of the local community are in the unique position to encourage or discourage potential applicants, depending on the strength of the relationship the chief prosecutor has with them. As a caveat, chief prosecutors who are genuinely committed to the goal of diversity should not be discouraged by the uneasy relationship that has traditionally existed between law enforcement and minority communities. The changing public perception of prosecutors, as evidenced by television shows like “Law and Order,” coupled with the fact that “prosecutor” clinics are becoming part of the curriculum in law schools, has persuaded a growing number of minority law students to pursue careers in prosecution. Additionally, the traditional reasons for seeking a career in prosecution, such as the opportunity to serve the public, litigation experience, and exposure to complex legal issues continue to be strong motivations.

Many high-profile trials are first won (or lost) in the court of public opinion. When a community perceives—rightly or wrongly—that a prosecutor is culturally insensitive, the judicial system, including all levels of law enforcement, pays a heavy penalty. A mistrust of law enforcement will fester amongst members of the minority community and consequently, will bolster the belief that the laws are unjust. As a result, citizens’ inclinations to abide by the laws may ebb, thus leading ultimately to failure of the entire criminal justice system. The potential for damage is great.

Ten-Step Plan for the Recruitment of Minorities as Prosecutors

• Formulate and publicize a non-discrimination policy;
• Establish recruitment goals;
• Develop long-term recruitment and retention strategy;
• Diversify upper level management;
• Create minority support networks within the office;
• Publicize commitment to diversity to the general community;
• Establish and institutionalize “sensitivity” training for upper level management and assistant prosecutors, if necessary;
• Interface with local and national minority bar associations;
• Establish a relationship with minority law school associations in area law schools; and,
• Maintain a pool of minority applicants; send recruiters to public interest job fairs, law schools that demonstrate a strong commitment to increased minority enrollment, and historically black law schools.

1 New York State Bar Association’s Committee on Professional Ethics (1972) (emphasis supplied).

2 Ben J. Wattenberg, The First Universal Nation (New York: The Free Press, 1990).

3 Judicial Improvements and Access to Justice Act, Pub. L. No. 100-702 Stat 4642 (1988) Ninth Circuit Task Force on Gender Bias, The Effects of Gender in the Federal Courts (1993), address of Justice Sandra Day O’Connor.

4 Ellis Cose, A Nation of Strangers (William Morrow and Company, Inc., eds., 1992).

5 Andrew Hacker, Two Nations (Macmillan eds., 1992).

6 Brown v. Board of Education, 347 US 483 (1952)

Heart of Atlanta Motel, Inc. v. U.S., 379 US 241 (1964)

Katzenbach v. McClung, 379 US 294 (1964)

U.S. v. Lopez, 514 US 549 (1995)

7 District of Columbia Task Force on Racial/Ethnic Bias in the Courts, Final Report of the Task Force on Racial and Ethnic Bias and the Task Force on Gender Bias in the Courts, 64 George Washington Law Review 173 (1996).

8 Research Sub-committee, Washington State Minority and Justice Commission, Racial and Ethnic Disparities in Prosecution and Sentencing, 32 Gonzaga Law Review, 577 (1996/1997).

9 Utah Task Force on Racial and Ethnic Fairness in the Legal System, 11 Utah Bar J. 38 (1998).

10 Offutt v. U.S., 348 US 11 (1954).

11 Information Service of the National Center for States Courts, Part I: Materials from States and Individual Task Forces and Commissions on Racial and Ethnic Bias in the Courts (1997).

12 Florida Racial and Ethnic Bias Study Commission, Report and Recommendations of the Florida Supreme Court Racial and Ethnic Bias Study Commission (Florida Supreme Court, 1991), Juvenile

Justice: The Need for Further Reform; Utah Task Force On Racial and Ethnic Fairness in the Legal System, 11 Utah Bar J 38 (1994); Washington Minority and Justice Commission (November 1995), Racial and Ethnic Disparities in the Prosecution of Felony Cases in King County.

13 Florida Study, Washington State Study, Ibid.

14 Ibid.

15 Ibid.

16 Florida Racial and Ethnic Bias Study Commission, Report and Recommendations of the Florida Supreme Court Racial and Ethnic Bias Study Commission (Florida Supreme Court, 1991) pg. 607.

17 Ibid, pg. 606.

18 District of Columbia Task Force on Racial/Ethnic Bias in the Courts, Final Report of the Task Force on Racial and Ethnic Bias and the Task Force on Gender Bias in the Courts 64 Geo. Wash. L. Rev. 173 (1996).

19 Ibid.

20 Crawford v. U.S., 212 U.S. 183 196 (1902).

21 Task Force on Gender, Racial, and Ethnic Fairness in the Courts (2nd Circuit) (1997)

22 Melanie G. Fine, Building Successful Multicultural Organizations (Westport, Conn: Quorum Books 1995).

23 Hudson Institute, Workforce 2000 (Johnson & Packer, 1987).

24 Ibid. pg. 126.

25 Ibid.