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The Pennsylvania Supreme Court’s Committee on Racial and Gender Bias on Tuesday reported that “racial, ethnic and gender bias … infects the justice system at many key points” and “significantly affect[s] the way an individual (be it a party, witness, litigant, lawyer, court employee or potential juror) is treated.” The report also criticized Pennsylvania’s death penalty system, revealing that “[a]lthough Pennsylvania’s minority population is 11 percent, two-thirds … of the inmates on death row are minorities. Pennsylvania is second only to Louisiana in the percentage of African-Americans on death row.” The panel recommended that a moratorium be declared on the imposition of the death penalty in certain cases pending completion of further study. Established in 1999, the committee released a 500-plus page report that details the group’s findings on bias in the state justice system. Chaired by Duquesne University School of Law Dean Nicholas Cafardi, the 11-member committee was charged with studying the Pennsylvania court system to determine whether racial or gender bias plays a role in the delivery of justice in the commonwealth. The committee recommended judicial reforms that will be the focus of two task groups charged with detailing the implementation of the proposed reforms. Chief Justice Ralph J. Cappy on Tuesday announced that 3rd U.S. Circuit Court of Appeals Judge Marjorie O. Rendell and Philadelphia City Solicitor Nelson Diaz would chair the two groups. “The committee wishes to emphasize that it heard positive comments about how the Pennsylvania justice system functions,” the introduction to the report states. “The full report describes these observations and highlights the best practices by the courts in Pennsylvania and elsewhere. “Even when controlling for other factors such as economic status, familial status and geographic diversity, the studies demonstrate that racial, ethnic and gender bias still emerge as significantly affecting the way an individual (be it a party, witness, litigant, lawyer, court employee or potential juror) is treated. As the Supreme Court itself recognized in commissioning and appointing this committee, any such bias is intolerable and must be eliminated.” Committee members Lynn Marks, who is the executive director of Pennsylvanians for Modern Courts, and Andre Dennis, a partner in the Philadelphia office of Stradley Ronon Stevens & Young, said they viewed the substantial report as a first — and important — step in what will be a long process. Dennis, who co-chaired the racial and ethnic bias subcommittee, said he felt a sense of accomplishment in terms of being involved in an effort that would substantially impact the state’s justice system. The attorney said that if the committee’s recommendations were implemented, the court system would become fairer and less prone to racial and gender bias. Cafardi told The Legal Intelligencer that some of his committee’s recommendations could be implemented quickly, at little to no cost. But other, standout issues identified in the report — including fair application of the death penalty; underfunded public defenders’ offices; treatment of domestic violence victims; and translating services for litigants with limited English proficiency — would require a governmental commitment and substantial funding. Though state and county budgets will be tight this year, Cafardi said all Pennsylvanians have an interest in a judicial system that is not only fair, but also perceived as such. To assess the nine issues covered by the committee’s study, a series of workgroups employed research methods including statewide public hearings; surveys developed with expert assistance; the examination of statistical data gleaned from both original and existing studies; professionally conducted focus groups and personal interviews; roundtable discussions held with experienced attorneys and legal system users; and the work of other state and federal racial, ethnic and gender bias task forces. Despite the group’s research, its report indicates a need for additional data on some issues. An endnote to the introduction states that though committee members heard concerns regarding bias against individuals with disabilities and those who are gay, lesbian, bisexual and transgendered, the committee ultimately deemed discrimination against these groups beyond the scope of its charge. “Nevertheless,” the endnote reads, “the committee suggests that the court consider simultaneously addressing the needs of these groups, in light of the similarity of issues and solutions in the context of race, ethnicity and gender.” Perhaps most important, the committee studied racial and ethnic disparities in the imposition of the death penalty. “Pennsylvania has the nation’s fourth largest death row, with 245 inmates currently under sentence of death in the commonwealth,” the report states, citing the U.S. Bureau of Criminal Justice Statistics and the Pennsylvania Department of Corrections. “Although Pennsylvania’s minority population is 11 percent, two-thirds … of the inmates on death row are minorities. Pennsylvania is second only to Louisiana in the percentage of African-Americans on death row.” According to the report, extensive study in Philadelphia County revealed that controlling for the seriousness of the offense and other non-racial factors, “African-American defendants were sentenced to death at a significantly higher rate than similarly situated non-African Americans.” Researchers “further concluded that one third of African-Americans on death row in Philadelphia County would have received life sentences if they were not African-American,” the report states. The committee recommended that the court declare a moratorium on the imposition of the death penalty in any case in which a defendant’s direct appeal has resulted in affirmation by the Supreme Court of Pennsylvania, pending completion of a study that would examine defendant and victim race in prosecutorial decisions to seek the death penalty, and in death sentencing outcomes. “The moratorium should continue until policies and procedures intended to ensure that the death penalty is administered fairly and impartially are implemented,” the report indicates. Fourteen additional recommendations followed. Recommendations on death penalty issues were also made to the Legislature, the attorney general and district attorneys, and to the governor of Pennsylvania. The report also examined the plight of litigants with limited English proficiency. The committee’s research revealed “fundamental statewide deficiencies in the treatment of LEP litigants.” Among those identified as key findings are: • Some courts allowing cases involving LEP parties, including criminal defendants, to proceed without interpreters; • Some courts routinely permitting untrained, non-professional individuals such as relatives or friends to act as interpreters; and • The lack of standards in Pennsylvania for the use of interpreters and for determining interpreter competency compounding the problem of providing access to justice for LEP persons. Marks, who served as co-chair of the gender bias subcommittee, said she recalled hearing testimony about a woman bringing a protection from abuse action against her husband. The woman did not speak any English, and because an interpreter was not present, the presiding judge asked the alleged abuser to translate for his wife. To combat the obstacles that LEP litigants face, the committee made a number of recommendations that it said would be costly, but essential in providing equal access to justice. The committee requested that the court, among other measures: • Establish for all courts in the commonwealth a policy stating that all people, including parties to judicial proceedings, witnesses and members of the public, shall have equal access to justice in the judicial system without regard to English language proficiency; • Require that all courts provide qualified interpreters to litigants at no charge; and • Require that courts translate forms and other documents to the extent necessary to provide access to the court system to those unable to read English. Racial and ethnic bias subcommittee co-chair Charisse Lillie described the larger committee’s work as a labor of love, noting that all of the group’s members have demonstrated their commitment to racial and gender bias issues in the past. Marks emphasized that while the courage some people showed by testifying in public about their experiences and how the justice system affected their lives was memorable, she was also struck by some of the good things the committee found. Some county programs, she said, will serve as models for others in the state. Additional committee members included Philadelphia Court of Common Pleas Judge Ida Chen; Thomas Cooper of Pittsburgh’s Gilardi Cooper Lomupo; Diaz; Temple University Beasley School of Law Professor Phoebe Haddon; Roberta Liebenberg of Philadelphia’s Fine, Kaplan and Black; Burton Morris of Harrisburg, Pa.; and Msgr. David Rubino. Committee staff included executive director Lisette McCormick; research assistant Jennifer Collins; secretary Eileen Mackowiak; paralegal Nancy Mancuso; and staff counsel Danielle S. Williams. The committee’s report is available at www.aopc.org/Index/ Supreme/biasreport.htm.

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