Judges On Race: The Path To A More Diverse Bench

By Justice Erika Edwards | December 20, 2020, 8:02 PM EST

On the heels of nationwide calls to address systemic racism and inequality, sitting judges shed light on the disparities that exist in the justice system and how to guard against bias in this series of Law360 guest articles.

Justice Erika Edwards

I believe the way to significantly reduce and eliminate racial disparities in the criminal justice system is to implement long-term policy changes and programs that support economically disadvantaged groups, and those underrepresented within the court system and outside in communities of color.

We must also maintain a diverse judiciary that more accurately reflects the population in which it serves and the litigants who regularly appear before it.

As a judge and former prosecutor and defense attorney, I have worked in the criminal justice system in New York City for over 25 years. I have seen initiatives from well-intentioned, intelligent leaders come and go, but I have never before witnessed the widespread demands for change that have emerged in the wake of recent shootings of so many unarmed Black and Latino people. 

People of all races and ethnicities have united to say that they have had enough and we as a nation are ready for a change. Now, more than ever, people all over the country are acknowledging our faults as individuals and as a nation, we are understanding that we can and must do better, and we are committing ourselves toward making the necessary changes to rectify the problems of racial and ethnic injustice.

To effect true change, we must first ensure that leaders across multiple entities commit to creating policies and procedures necessary to eradicate systemic racism, institutional explicit and implicit bias, and to hire employees willing to implement the changes on a daily basis.

It cannot happen overnight. Anything worth attaining rarely happens easily or quickly. It takes steadfast commitment of knowledgeable, dedicated, well-trained, open-minded and good-hearted people who are willing to effect real change, no matter how uncomfortable it may be.

We must diligently work to close the achievement gap by implementing programs to support economically disadvantaged and underrepresented groups. Although, generally there is a much higher percentage of Black and Latino men appearing in criminal courts throughout the nation than is reflective of their percentages in the population, I believe the real issue is economics and not only race and ethnicity.

To be clear, in major metropolitan areas the economically disadvantaged are mostly people of color. However, because low-income communities often lack adequate education, affordable housing, health care, occupational training, employment opportunities, and sufficient mental health diagnosis and treatment, they naturally have higher numbers of people trapped within the criminal justice system.

Until we close this achievement gap, we can never truly eradicate racial disparities in the criminal justice system.

Additionally, although the court system cannot readily reform the education and health care systems, we can attack racial disparities internally by pledging to commit to a no-tolerance racism and bias policy, and committing to recruit, hire, adequately train, support and promote to supervisory positions people of color in nonjudicial positions within the court system. 

Far too often are people of color overlooked to serve in positions that have direct contact with attorneys and litigants in criminal court, like court clerks, court officers, court reporters, clerical staff and chambers staff. Even when people of color are hired in these positions, it is often difficult to advance to managerial levels with the authority to make policy changes.

I challenge the courts to improve diversity within their personnel and encourage other institutions within the criminal justice system, like police departments, prosecutor offices, probation departments, defense law firms and institutional defender organizations to do the same.

Finally, we must restore public confidence and faith in the criminal justice system by maintaining a judiciary that more accurately reflects the community in which it serves and the litigants who appear before it. Many people see senseless injustice on a regular basis and they are beaten down and have grown weary and numb.

People need to see a judiciary that reflects the community in which it serves. There is no question that a diverse judiciary needs intelligent and fair-minded people from varying racial, ethnic, educational, socioeconomic, personal and professional backgrounds. A diverse judiciary creates enlightening dialogue from unique perspectives resulting in more well-reasoned, equitable decisions.

In most, if not all, of the high-volume criminal courts across the nation, the vast majority of defendants are Black and Latino men. Therefore, it is imperative that the judiciary includes a high percentage of Black and Latino men.

The dearth of Black and Latino men in the judiciary has become a crisis that has greatly contributed to destroying public confidence in the criminal justice system. Numerous studies have shown that people of color remain underrepresented in the judiciary when compared to the percentage of nonwhite residents.

Unfortunately, nationwide the number of Black and Latino men in the judiciary is nothing short of abysmal.

For example, in the state of New York, there is only one Black man out of 50 judges serving at the appellate division level. In New York City, one of the busiest criminal trial courts in the country, there are no Black men serving in Manhattan, one serving in Staten Island, there will be only one serving in Queens as of the new year, and there are only a handful serving in the Bronx and Brooklyn.

When we look at the numbers of Black men attending law school to determine whether help is on the way, we realize that the numbers of Black men attending U.S. law schools has declined from 10 years ago and Black women outnumber Black men in law school by almost 2-to-1.[1] At Howard University School of Law, where 90% of the students are Black, Black men only account for about 30% of Black students.[2]

Therefore, to improve the lack of diversity in the judiciary, we must focus on recruiting talented Black and Latino male attorneys to pursue careers in the judiciary and Black and Latino law students to pursue judicial clerkships. We must create a pipeline from the books, to the bar, to the bench, so more Black and Latino men can obtain the necessary skills and experience to become excellent judges.

We also need to make sure that positions where attorneys can obtain the requisite criminal experience, like prosecutors, criminal defense attorneys and court attorneys, are more committed to hiring and advancing Black and Latino men.

To significantly reduce and eliminate racial disparities in the criminal justice system, we must acknowledge, attack and eradicate institutional racism and implicit bias in multiple institutions on a regular basis. This plan may seem too difficult or idealistic, but it can be accomplished with the help of all of us.

We can begin by implementing long-term policy changes within the court system and in predominantly economically disadvantaged and minority communities to maintain a diverse judiciary that more accurately reflects the population that it serves and the litigants who regularly come before it. We have the power to eliminate racial disparities in the criminal justice system, but we must all do our part one day at a time.

Erika M. Edwards is a judge on the New York Supreme Court for the County of New York. She joined the court in 2017.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio​​ Media Inc. or any of its​​ respective affiliates. This article is for general information purposes an​​d is​​ ​​not ​​intended to be and​​ should not be taken as legal advice.

[1] The Journal of Blacks in Higher Education reported that over the past five years Black men may have begun to close the Black gender gap in law school, but women still represent 61% of Blacks attending law schools in the U.S.

[2] The Education of Black Lawyers-Developing a Pipeline for the Future, The Practice, Vol. 3, Issue 5 (July/August 2017).

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