final report

final report of the
Pennsylvania supreme
court committee on
racial and gender bias
in the justice system

TABLE OF CONTENTS

5

COMMITTEE AND SUBCOMMITTEE MEMBERS

10

ACKNOWLEDGMENTS

12

INTRODUCTION

17

CHAPTER 1

LITIGANTS WITH LIMITED ENGLISH
PROFICIENCY
Introduction
Synopsis of Findings
Legal Analysis
Research Methodology
Public Hearing Testimony
Other State Systems and the State Court Interpreter
Certification Consortium
General Findings
Recommendations
Endnotes

51

CHAPTER 2

RACIAL AND ETHNIC BIAS IN JURY SELECTION
Introduction
Synopsis of Findings
Research Methodology
Public Hearing Testimony
Other Task Force Findings
Best Practices
Recommendations
Endnotes

103

CHAPTER 3

GENDER BIAS IN JURY SELECTION
Introduction
Synopsis of Findings
Research Methodology
Public Hearing Testimony
Best Practices
Recommendations
Endnotes

125

CHAPTER 4

SENTENCING DISPARITIES IN THE CRIMINAL
JUSTICE SYSTEM
Introduction
Synopsis of Findings
Research Methodology—Kramer/Ulmer Study
Specific Study Findings
Limitations on Findings
Public Hearing Testimony
Other Task Force Findings
Appellate Review
Recommendations
Endnotes

163

CHAPTER 5

INDIGENT DEFENSE IN PENNSYLVANIA
Introduction
Synopsis of Findings and Recommendations
Research Methodology
Indigent Defense Expenditures in Pennsylvania
Indigent Defense Expenditures in Pennsylvania Compared
with Similar State Systems
Indigent Defense in Pennsylvania: Specific Findings
Recommendations
Endnotes

199

CHAPTER 6

RACIAL AND ETHNIC DISPARITIES IN THE
IMPOSITION OF THE DEATH PENALTY
Introduction
The Necessity for Comprehensive Data Collection
Empirical Research in Pennsylvania and Elsewhere
Delivery of Counsel Services to Indigent Defendants
The Need for a Racial Justice Act
Standards for the Exercise of Prosecutorial Discretion
Conclusion
Recommendations
Sources
Endnotes

229

CHAPTER 7

CIVIL LITIGATION
Introduction
Synopsis of Findings
Other Task Force Findings
Inequities in Personal Injury and Wrongful Death Awards
to Women and Minorities
Inequities in Employment Discrimination Cases
Recommendations
Endnotes

261

CHAPTER 8

EMPLOYMENT AND APPOINTMENT PRACTICES
OF THE COURTS
Introduction
The Court as Employer
The Court as Appointer
Conclusion
Recommendations
Endnotes

303

CHAPTER 9

PERCEPTIONS AND OCCURRENCES OF
RACIAL, ETHNIC, AND GENDER BIAS IN THE
COURTROOM
Introduction
Racial and Ethnic Bias
Gender Bias
Model Codes of Professional Conduct
Model Grievance Procedures
Recommendations
Endnotes

385

CHAPTER 10

DOMESTIC VIOLENCE
Introduction
Synopsis of Findings and Recommendations
General Findings
Conclusion
Other Task Force Findings
Best Practices
Recommendations
Endnotes

419

CHAPTER 11

SEXUAL ASSAULT
Introduction
Synopsis of Findings and Recommendations
Research Methodology
Relevant Pennsylvania Law
Other Task Force Findings
General Findings
Recommendations
Endnotes

453

CHAPTER 12

FAMILY LAW
Introduction
Synopsis of Findings
General Findings
Other Task Force Findings
Conclusion
Best Practices
Recommendations
Endnotes

505

CHAPTER 13

RACIAL, ETHNIC, AND GENDER BIAS IN THE
JUVENILE JUSTICE SYSTEM
Introduction
Focus of Inquiry
Research Methodology
National Data
Stakeholder Interviews
Public Hearing Testimony
Other Task Force Findings
Conclusion
Recommendations
Endnotes

537

CHAPTER 14

INTERSECTION OF RACIAL AND GENDER BIAS
Introduction
Conclusion
Recommendations
Endnotes

COMMITTEE AND SUBCOMMITTEE MEMBERS

COMMITTEE AND SUBCOMMITTEE
MEMBERS
COMMITTEE ON RACIAL AND GENDER BIAS
IN THE JUSTICE SYSTEM
Nicholas P. Cafardi, Chair
Dean, Duquesne University School of Law
Honorable Ida K. Chen
Court of Common Pleas, Philadelphia
Thomas L. Cooper, Esq.
Gilardi, Cooper, Lomupo
André L. Dennis, Esq.
Stradley, Ronon, Stevens & Young, LL.P.
Honorable Nelson A. Diaz
City Solicitor, Philadelphia
Professor Phoebe A. Haddon, Esq.
Temple University Beasley School of Law
Roberta D. Liebenberg, Esq.
Fine, Kaplan and Black
Charisse R. Lillie, Esq.
Ballard, Spahr, Andrews & Ingersoll, LL.P.
Lynn A. Marks, Esq.
Executive Director, Pennsylvanians for Modern Courts
Burton D. Morris, Esq.
Harrisburg, PA
Monsignor David Rubino
Seton Hill College

Staff
Lisette M. McCormick, Esq., Executive Director
Jennifer Collins, Research Assistant
Eileen Mackowiak, Secretary
Nancy Mancuso, Paralegal
Danielle S. Williams, Staff Counsel

5

COMMITTEE AND SUBCOMMITTEE MEMBERS

RACIAL AND ETHNIC BIAS SUBCOMMITTEE
WORK GROUPS
Committee Members
André L. Dennis, Esq., Co-Chair
Professor Phoebe A. Haddon, Esq., Co-Chair
Charisse R. Lillie, Esq., Co-Chair

Reported Occurrences and Perceptions of Racially Biased Behavior

6

Professor Frank McClellan, Esq., Chair, Philadelphia
AnnDrea Benson, Esq., Erie
Eugene Berry, Esq., Pittsburgh
Lillian Haskins, Esq., Harrisburg
Juan Laureda, Esq., Philadelphia
Honorable Livingstone Johnson, Pittsburgh
Reverend William Moore, Harrisburg

The Court as Appointer
Carl Cooper, Esq., Chair, Pittsburgh
Pamela Cross, Esq., Harrisburg
David Hickton, Esq., Pittsburgh
Glenn Mahone, Esq., Pittsburgh
Honorable Juan Sanchez, Chester

The Court as Employer
Charlotte Jefferies, Esq., Chair, Pittsburgh
Honorable Timothy P. Creany, Altoona
District Justice Fred Pierantoni, Wilkes-Barre

Litigants with Limited English Proficiency
Quan Pham, Chair, Philadelphia
Osvaldo Aviles, Philadelphia
Honorable Ida K. Chen, Philadelphia
Pedro Cortes, Esq., Harrisburg
Luis Diaz, Esq., Philadelphia
Stephen Krone, Esq., Harrisburg
Arthur Read, Esq., Philadelphia
Judith A. Robinson, Esq., Harrisburg
Paul Uyehara, Esq., Philadelphia

COMMITTEE AND SUBCOMMITTEE MEMBERS

Race and Ethnic Bias in Jury Selection
Will Gonzalez, Esq., Co-Chair, Philadelphia
Kurt Saunders, Esq., Co-Chair, California
Clifford Boardman, Esq., Philadelphia
Joel Johnson, Esq., Philadelphia
Tsiwen M. Law, Esq., Philadelphia
Timothy P. O’Brien, Esq., Pittsburgh
Honorable R. Stanton Wettick, Jr., Pittsburgh
Wendy L. Williams, Esq., Pittsburgh

The Criminal Justice System: Sentencing
Philip Friedman, Esq., Chair, Erie
Honorable Renee Hughes, Philadelphia
Caroline Roberto, Esq., Pittsburgh
J. Clayton Undercofler, Esq., Philadelphia
Professor Lu-in Wang, Esq., Pittsburgh

The Criminal Justice System: Death Penalty
Henry Perkin, Esq., Chair, Allentown
Efrem M. Grail, Esq., Pittsburgh
Lt. Sharon Seaborough, Philadelphia
Honorable Gregory E. Smith, Philadelphia
Shelly Stark, Esq., Pittsburgh
Pamela Tucker, Philadelphia
Kevin Vaughan, Esq., Philadelphia
David Zuckerman, Esq., Philadelphia

The Criminal Justice System: Juvenile Justice
Marsha Levick, Esq., Co-Chair, Philadelphia
Robert Listenbee, Esq., Co-Chair, Philadelphia
Honorable Cheryl Allen, Pittsburgh
Meghan Black, Esq., Pittsburgh
Reverend Luis Cortes, Philadelphia
Rhonda Anderson Marks, Esq., Pittsburgh

Family Law
Honorable Cynthia Baldwin, Chair, Pittsburgh
Professor Karen Jackson Vaughan, Esq., Philadelphia

7

COMMITTEE AND SUBCOMMITTEE MEMBERS

GENDER BIAS SUBCOMMITTEE WORK GROUPS
Committee Members
Lynn A. Marks, Esq., Co-Chair
Roberta D. Liebenberg, Esq., Co-Chair

Reported Occurrences and Perceptions of Gender Biased Behavior

8

Judy Berkman, Esq., Co-Chair, Philadelphia
Christine Miller, Esq., Co-Chair, Pittsburgh
Honorable Nitza I. Quinones Alejandro, Philadelphia
Honorable Faith Angell, Philadephia
Honorable Kate Ford Elliott, Pittsburgh
Amos Goodall, Esq., State College
Honorable John W. Herron, Philadelphia
District Justice Elaine McGraw, Pittsburgh
Honorable Norma L. Shapiro, Philadelphia
Honorable Eugene B. Strassburger, III, Pittsburgh
Min Soo Suh, Esq., Philadelphia
Audrey Talley, Esq., Philadelphia

The Court as Appointer
Sara Davis Buss, Esq., Pittsburgh
Honorable Rita Hathaway, Greensburg
Honorable Maureen Lally-Green, Pittsburgh
(Participated in fact-finding process only)
Honorable Kathleen R. Mulligan, Pittsburgh
Rhoda Neft, Esq., Pittsburgh

The Court as Employer
Bunny Baum, Philadelphia
Professor Martha Chamallas, Esq., Pittsburgh
Honorable Maureen Lally-Green, Pittsburgh
Elizabeth “Dolly” Shuster, Esq., Harrisburg
Deborah Weinstein, Esq., Philadelphia

Civil Litigation
Professor Martha Chamallas, Esq., Chair, Pittsburgh
Kim Borland, Esq., Wilkes-Barre
Gloria M. Gilman, Esq., Philadelphia
Jon Pushinsky, Esq., Pittsburgh
Richard Ruth, Esq., Erie
Jamie Sheller, Esq., Philadelphia

COMMITTEE AND SUBCOMMITTEE MEMBERS

Gender Bias in Jury Selection
Marguerite Walsh, Esq., Chair, Philadelphia
Professor Robert Boatright, Esq., Washington D.C.
Andrew A. Chirls, Esq., Philadelphia
Julia Hoke, Esq., Philadelphia
Honorable Flora Wolf, Philadelphia

Sexual Assault
Delilah Rumburg, Chair, Harrisburg
Commander Gwen Elliott, Pittsburgh
Ellen Greenlee, Esq., Philadelphia
Mila Hayes, Norristown
Honorable Patricia McInerney, Philadelphia
Mimi Rose, Esq., Philadelphia
Carol Tracy, Esq., Philadelphia

Domestic Violence
Sharon Lopez, Esq., Chair, Harrisburg
Lorraine Bittner, Esq., Pittsburgh
Honorable Ida K. Chen, Philadelphia
Ingrid Cronin, Esq., Wilkes-Barre
Patricia A. Dubin, Esq., Philadelphia
Christine McLaughlin, Esq., Wilkes-Barre
Officer Ana Rodriguez, Philadelphia

Family Law
Mary Cushing Doherty, Esq., Chair, Philadelphia
Professor Vanessa Browne-Barbour, Esq., Pittsburgh
Kathleen C. Daley, Esq., Harrisburg
Terry L. Fromson, Esq., Philadelphia
Chris Gillotti, Esq., Pittsburgh
Honorable Leslie Gorbey, Lancaster
Scott M. Hollander, Esq., Pittsburgh
Elizabeth Jackson, Esq., Philadelphia
Joann Jofrey, Esq., Sharon
Bill Madeira, Esq., Philadelphia
James Mahood, Esq., Pittsburgh
Judge Lillian Ransom, Philadelphia
Professor Louis Rulli, Esq., Philadelphia

Intersection of Race and Gender
Professor Phoebe A. Haddon, Esq., Chair, Philadelphia
Honorable Jacqueline Allen, Philadelphia
Roberta D. Liebenberg, Esq., Philadelphia

9

ACKNOWLEDGMENTS

ACKNOWLEDGMENTS
It is of particular importance to acknowledge that this study would not
have taken place without the commitment and support of the Supreme
Court of Pennsylvania, the General Assembly of Pennsylvania, and former
Governor Tom Ridge. In particular, Joseph Daily, Executive Administrator
of the Supreme Court, and his staff assisted the Committee staff on a
regular basis.

10

The Committee also acknowledges the work of the Philadelphia Bar
Association in 1993 that resulted in a survey and the filing of a petition
with the Supreme Court of Pennsylvania requesting that the Court appoint
a committee to study issues of race and ethnicity within the justice system.
In addition, the Committee is grateful to Will Gonzalez for his efforts to
obtain initial funding for the study.
The Committee is indebted to the chairs and members of the work groups
for their diligence and resourcefulness exhibited throughout the study. The
Committee also wishes to thank the staff, along with the writers, editors,
particularly James Davidson, Nancy Koerbel, and Chris Miller, and law
students, who spent countless hours researching, reviewing and drafting the
fourteen chapters of this report. Lisette McCormick, our executive director,
has provided extraordinary leadership to this effort, and we are grateful to
her and the staff.
The Committee extends its deepest appreciation to the court administrators
throughout the Commonwealth for devoting many hours to completing
surveys and compiling data in order to facilitate our evaluation of the
inner-workings of the justice system. The staff of the Administrative Office
of Pennsylvania Courts offered support and expertise throughout the study.
Special thanks are also extended to the court administrators and judges in
areas where the public hearings were held: Pittsburgh, Philadelphia,
Harrisburg, Erie, State College and Wilkes-Barre/Scranton. The Committee
gratefully acknowledges their assistance in community outreach efforts,
securing conference rooms large enough to accommodate the audiences,
and for supporting our work. The Committee also thanks all of the
witnesses who testified at the public hearings and the many participants in
our roundtable discussions around the Commonwealth.

ACKNOWLEDGMENTS

The Committee wishes to recognize the invaluable contribution of
Dr. Yolande P. Marlow of the Administrative Office of the Courts in New
Jersey for graciously reviewing countless reports and providing many hours
of support and consultation to the Committee, and of Lynn Hecht Schafran
and the National Judicial Education Program for the wealth of information
they provided to the Committee’s study.
The Committee consulted with a number of individuals to develop surveys
for our work groups' research efforts and to conduct sophisticated
statistical analyses of the data. Amy Anderson, Wanda Foglia, John
Kramer, Monique Martin, Andrea Piccinin, Ralph Taylor, Gail Johnston
Ulmer, Jeffrey Ulmer, and Rangita de Silva-de Alwis, Bob Spangenberg and
their staff all produced reports of the highest quality for the Committee.
Nancy Hirschinger and Alan Rosin also consulted with the Committee in
the design of survey instruments.
The Committee is also indebted to Agnew Moyer Smith Inc. who
designed and produced the final report for the Committee. In particular,
the Committee thanks Christina Papp, Rita Lee, Cat Zaccardi, Deborah
Edwards and Andie Markijohn for their dedication and expertise
in producing an excellent product. The Committee also thanks Beach
Advertising, Bynums Advertising, and Cobb and DaBaldo Printing
Company for their assistance in proofreading and printing the report and
supplementary materials.
In addition, the Committee thanks the many individuals who helped organize
and conduct focus groups and roundtable discussions, including The
Melior Group, Ann Begler, Lorraine Bittner, Jennifer Campbell, Robert Creo,
Mary Cushing Doherty, Patricia Dubin, Terry Fromson, Mardi Harrison,
Vicki Kramer, Joseph Lach, Sharon Lopez, Louis Rulli, Delilah Rumburg and
the staff of the Pennsylvania Coalition Against Rape, and Caren Bloom.
The Committee is also indebted to the law firms of Ballard, Spahr, Andrews
& Ingersoll and Blank, Rome, Comisky & McCauley in Philadelphia for
graciously hosting the monthly Committee meetings. Special thanks to
Duquesne University School of Law, Philadelphia Legal Services and Meyer,
Darragh, Buckler, Bebenek & Eck in Pittsburgh for housing and assisting
the Committee staff in numerous ways.
The wisdom of these many individuals and organizations helped produce a
report that we hope will serve as a guide to fostering a court system that is
as fair and equitable as possible. Without their support, the Committee’s
work would have been impossible.

11

INTRODUCTION

INTRODUCTION
On October 15, 1999, the Supreme Court of Pennsylvania appointed the
Committee on Racial and Gender Bias in the Justice System,1 to undertake
a study of the state court system to determine whether racial or gender bias
plays a role in the justice system. Upon completion of the study, the
Committee was instructed to present its findings and recommendations to
the Court.

12

In order to discharge its mission, the Committee identified what it believed
to be the key issues in its study. These included the needs of litigants with
limited English proficiency; the lack of racial and ethnic diversity in the
composition of juries; the employment and appointment processes of the
courts; the treatment by the court system of survivors of domestic violence
and sexual assault; racial, ethnic, and gender bias in the juvenile justice
system; disparities in sentencing; the adequacy of representation of indigent
criminal defendants; racial and ethnic disparities in the imposition of the
death penalty; and selected issues in civil litigation and family law. The
Committee set up a series of work groups comprised of distinguished
representatives from across the state, including members of the bench and
bar, educators, and advocates with expertise in the topics which the
Committee selected for study. Each of the work groups was assigned the
task of examining one of the discrete topics selected for study and
implementing the research methodology formulated by the Committee.
The methodology was chosen to ensure the broadest level of participation
by all sectors of the community. The methods that were employed
included the following:
1. PUBLIC HEARINGS—The Committee conducted public hearings in six
locations across the Commonwealth. The hearings attracted scholars,
advocates, court personnel, attorneys, judges, and members of the
general public who offered accounts of their experiences with the
justice system. The hearings were well-publicized and generated a total
of 2,000 pages of testimony.
2. SURVEYS—With the assistance of experts, the Committee drafted and
distributed surveys to court administrators, district attorneys, public
defenders, community service agencies, and others in order to collect
data from across the Commonwealth on the topics chosen for study.
The response rate for most of the surveys was exceptionally high. The
data yielded by the surveys was professionally analyzed and was used
as a basis for the findings in the work groups’ reports. The data was
integral to the Committee’s recommendations.

INTRODUCTION

3. STATISTICAL STUDIES—The Committee engaged the services of
statistical experts to conduct original research for several of the work
groups. The topics of these studies included the racial and ethnic
diversity of juries across the Commonwealth; the adequacy of indigent
criminal defense services provided by public defender offices and
court-appointed attorneys; and racial, ethnic, and gender disparities in
sentencing. Comprehensive reports were prepared by the consultants
which support the findings and recommendations. These reports are
included in the appendices to the Committee report.
4. FOCUS GROUPS AND PERSONAL INTERVIEWS—The Committee
engaged the services of two professional research consultants to
conduct a series of focus group discussions and personal interviews
with individuals who play important roles in the legal system across the
Commonwealth. They helped to frame the issues for discussion and
utilized social scientific protocol for these inquiries. The discussions
focused on racial, ethnic, and gender bias in the courtroom. A total
of 10 focus group sessions were conducted with attorneys and court
personnel. Personal interviews were held with 18 judges and 10
litigants. The participants in the interviews and in the focus groups
were primarily African American and white, with representation from
the Latino and Asian American communities, and included both men
and women.
5. ROUNDTABLE DISCUSSIONS—The Committee also conducted a
series of roundtable discussions with experienced attorneys from
around the Commonwealth to discuss bias issues in discrete areas of
law, including employment law, family law, the juvenile dependency
system, general civil litigation, and criminal sexual assault cases.
Roundtable discussions were also held among users of the legal system,
including victims of domestic violence. The sessions were led by
experienced discussion facilitators. The invited participants came from
all areas of the Commonwealth and represented a cross-section of racial
and ethnic groups; they included both men and women, as well.
6. EXISTING STATISTICAL STUDIES—The Committee also reviewed
several existing statistical studies on topics being examined by the work
groups. The studies were conducted by distinguished researchers and
have found wide acceptance in the legal and social sciences arenas. The
topics ranged from the death penalty to court interpretation services.

13

INTRODUCTION

7. OTHER STATE TASK FORCE REPORTS—In an effort to build upon
the extensive research and study by other states and federal courts,
the Committee examined reports published by other state and federal
racial, ethnic, and gender bias task forces for information and
recommendations pertinent to the topics studied by the Committee.
The Committee also conducted extensive literature reviews on the
topics under study, focusing on law reviews, law journals, and scholarly
publications.

14

The Committee’s task presented a unique challenge: In seeking to determine
whether racial and gender bias permeate the court system, the Committee,
of necessity, had to seek out and focus upon data and information that
address race and gender explicitly. However, in some ways, this focus
challenges the notion that “justice is blind.” While the Committee initially
struggled with this seeming dichotomy, it recognized that in some contexts
a race-conscious or gender-conscious approach is needed, while in others,
a race-neutral or gender-neutral approach is the way to eliminate bias. For
example, if we are concerned about the racial makeup of jury pools, we
need information about the racial makeup of the population summoned,
the population responding to summonses, the pool that appears,
and the panels that are selected. Yet collecting such information can be
characterized as at odds with a “race-neutral” approach. The Committee
has concluded that collecting this information, not just in the jury context,
but in many others, is necessary to the work of eradicating bias. In other
contexts, the Committee has proposed a race-neutral and gender-neutral
approach as a means to eliminate bias, for example, in the use of statistical
life and work expectancy tables for damages awards. The Committee’s
positions in these different settings are not inconsistent; rather, they reflect
different modes of analysis for identifying and recommending solutions
for eliminating bias present in the court system.
The Committee wishes to emphasize that it heard positive comments about
how the Pennsylvania justice system functions. The full report describes
these observations and highlights “best practices” by the courts in
Pennsylvania and elsewhere. At the same time, the Committee’s findings
demonstrate that racial, ethnic, and gender bias does exist and that it
infects the justice system at many key points in both overt and subtle ways.
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.

INTRODUCTION

As the Supreme Court itself recognized in commissioning and appointing
this Committee, any such bias is intolerable and must be eliminated. The
courts are the institutions in which all citizens should expect to be treated
with equality, fairness, and respect. In order to live up to this ideal,
Pennsylvania’s courts must undertake reforms. Accordingly, the Committee
identifies in the report its findings and its recommendations for change.
These findings and recommendations are designed to respond to the
concerns articulated to the Committee and to highlight areas of the justice
system in need of improvement.

15
In formulating the recommendations, the Committee acknowledges that the
implementation of some of them is likely to be costly. Nevertheless, the
Committee strongly believes that they represent important steps towards
achieving a bias-free justice system.
While the findings and recommendations are responsive to the Court’s
charge, the Committee also believes that the work of the Court on these
matters should continue. There is an obvious need for additional data on
some issues, and in other areas, a more systematic effort should be
undertaken to establish a baseline and a system for monitoring progress.
Data collection should be an ongoing activity of the Court if bias is to be
addressed effectively. The Committee, therefore, respectfully recommends
that the Court consider appointing an implementation committee to
accomplish its goals of fairness and equality in the courts.2

ENDNOTES
············································
1

The members of the Committee include the following:
Nicholas P. Cafardi, Chair
Honorable Ida K. Chen
Thomas L. Cooper, Esquire
André L. Dennis, Esquire
Honorable Nelson A. Diaz
Phoebe A. Haddon, Esquire
Roberta D. Liebenberg, Esquire
Charisse R. Lillie, Esquire
Lynn A. Marks, Esquire
Burton D. Morris, Esquire
Monsignor David Rubino

2

During the study, the Committee heard concerns regarding bias against those with disabilities and
gay, lesbian, bisexual, and transgendered individuals. The Committee determined that bias against
people in these categories was beyond the scope of its charge. Nevertheless, 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.

1

LITIGANTS WITH
LIMITED ENGLISH
PROFICIENCY

18

INTRODUCTION

20

SYNOPSIS OF FINDINGS

21

LEGAL ANALYSIS

25

RESEARCH METHODOLOGY

31

PUBLIC HEARING TESTIMONY

36

OTHER STATE SYSTEMS AND THE STATE COURT INTERPRETER
CERTIFICATION CONSORTIUM

38

GENERAL FINDINGS

43

RECOMMENDATIONS

44

ENDNOTES

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

INTRODUCTION

18

Due process is a core value of the American judicial system, ensuring that
every litigant and criminal defendant receives a fair hearing that is based on
the merits of his or her case and presided over by an impartial judge. No
one should be put at a disadvantage in court by reason of race, ethnicity,
or gender. Yet due process, along with the basic fairness of the Pennsylvania
court system is jeopardized if litigants with limited English proficiency
(LEP) are unable to have access to competent interpreters and other
language assistance.1

The Census Bureau estimates that more than 970,000
persons over age 4 in Pennsylvania speak a language
other than English at home and that nearly 370,000…
do not speak English “very well.”
Every day, LEP persons appear as parties and witnesses in Pennsylvania
court proceedings or call upon the courts for help. These persons may not
be able to read or comprehend the court papers given to them. They may
not be able to engage in more than superficial conversation with court staff.
They may struggle to present their claims or defenses without a sound
understanding of the English language or, in many cases, American legal
culture. While interpreters are generally provided to LEP criminal
defendants, the interpreters are not certified by the Commonwealth and
may not be qualified to interpret court proceedings. In civil cases, LEP
parties often must either fend for themselves or rely upon unskilled and
untrained friends or relatives who are struggling to understand and explain
what is being said.
Increases in the number and proportion of foreign-born U.S. residents in
the past two decades suggest that ethnic, cultural, and linguistic diversity
will continue to challenge the courts. The Commonwealth now has
substantial communities of recent immigrants. Latinos are the largest group
of people with limited English proficiency. Puerto Ricans began arriving
in the 1920s, followed by people from Mexico, El Salvador, Guatemala, the
Dominican Republic, Venezuela, Colombia, and elsewhere. The Census
Bureau estimates that more than 970,000 persons over age 4 in
Pennsylvania speak a language other than English at home and that nearly
370,000 of these individuals do not speak English “very well.”2 As a
consequence, Pennsylvania courts in recent years have requested oral

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

language interpretation services in more than 50 different languages and
dialects.3 Upgrading the capacity of the Pennsylvania judicial system to
provide justice for all, regardless of English language ability, should be a
priority for the Commonwealth.

Focus of Inquiry
The Pennsylvania Supreme Court Committee on Racial and Gender Bias in
the Justice System (Committee) decided early in its deliberations to focus on
several of the following issues involving LEP litigants:
•

Examining the scope of responsibility of courts and administrative
agencies to provide oral interpretation services to persons in a variety of
judicial and administrative proceedings. In addition to providing
interpretation services in formal administrative hearings and criminal
defense proceedings, the courts must consider whether to provide
interpreters to people appearing as witnesses in criminal cases; witnesses
in civil cases; parties in civil cases; and jurors. Also, interpretation
services may be required by offenders who are ordered into court
supervision or court programs.

•

Determining the necessity of adopting a system for certification of
competency in oral court interpretation.

•

Identifying practical procedures for establishing systems for certification
of competency in oral court interpretation, including interim transitional
procedures.

•

Identifying barriers to the availability of qualified oral language
interpreters and means for overcoming those barriers.

•

Determining the necessity for written translation of documents and
establishing procedures for providing accurate translations.

•

Identifying other issues to be addressed, including the impact of cultural
issues within LEP communities and other immigrant, refugee, and
migrant communities.

•

Identifying the administrative mechanisms for accomplishing these goals.

Specific Research Methods
The Committee sought data and guidance through four primary avenues
of inquiry: 1) surveys of community agencies and court administrators;
2) testimony from the six public hearings it conducted around the
Commonwealth; 3) the personal professional experiences of The Litigants
Work Group members;4 4) the experiences of other states and published
literature and studies;5 and 5) an analysis of pertinent law.

19

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

SYNOPSIS OF FINDINGS

20

As immigrant, migrant, and refugee populations grow in many
Pennsylvania counties, fair access to the judicial system remains a
significant problem for those with language and cultural differences.
Despite the obvious need for culturally sensitive oral interpretation and
written translation assistance to LEP persons, Pennsylvania has no
statewide system for providing interpreter services in court proceedings.
Further, Pennsylvania has no system for certifying the competence of
interpreters in any language, including those languages for which court
interpreter certification programs have been established in neighboring
states and the federal courts. The absence of both undermines the ability of
the Pennsylvania court system to determine facts accurately and to dispense
justice fairly.
Many Pennsylvania courts provide interpreters only on an ad hoc basis,
allowing untrained and incompetent interpreters to translate court
proceedings. Many individuals are pressed into service, including relatives
and friends of people in court proceedings. Their proficiency in a language
other than English, however, does not mean they have the skills and
training to work as interpreters. Pennsylvania has no system for training
judges, court officials, or attorneys in issues related to utilization of
interpreters. Only when an LEP person is a defendant in a criminal case do
the Pennsylvania courts consistently recognize an obligation or duty to
provide interpretation services. Many litigants, particularly in civil matters,
are unable to obtain language assistance. The inadequacy of the services
clearly hinders courts in their ability to adjudicate disputes justly.
Pennsylvania’s First Judicial District in Philadelphia County has taken a
lead role in addressing these problems by initiating a formal court
interpreter system. Although Philadelphia County has not yet established
certification procedures, it has developed a model that may prove helpful
elsewhere in the Commonwealth. Philadelphia’s system is described in more
detail later in this chapter.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

LEGAL ANALYSIS 6
When people are unable to comprehend or participate fully in court
proceedings in which they are parties, fundamental notions of justice and
fairness are called into question. Substantial legal authority exists to
support the proposition that the U.S. Constitution, and the Civil Rights Act
of 1964, 42 U.S.C. §2000d et seq., obligate the states to provide
comprehensive language services to make the court system accessible to
LEP persons. This obligation is particularly compelling when LEP
individuals are forced to participate in court proceedings.
The well-established rights of a criminal defendant to a fair trial may be
compromised when a court conducts proceedings in a language not wellunderstood by the defendant. The right to an interpreter in criminal matters
is based upon the Fifth, Sixth and Fourteenth Amendments to the U.S.
Constitution. If the state fails to provide an interpreter when one is needed,
the situation jeopardizes the broad Fifth Amendment right not to be
deprived of life or liberty without due process of law; the more specific
Sixth Amendment rights of a criminal defendant to counsel, to a speedy
trial, to be informed of the charges against him, and to confront adverse
witnesses; and the Fourteenth Amendment rights to due process and equal
protection of the law. In concluding that failure to provide an interpreter
undermines the rights of a defendant to confront witnesses and to testify
on his own behalf, for example, the First Circuit noted that “no defendant
should face the Kafkaesque specter of an incomprehensible ritual which
may terminate in punishment.” United States v. Carrion, 488 F.2d 12, 14
(1st Cir. 1973). Indeed, the Pennsylvania Supreme Court previously has
recognized the importance of interpreters. See Commonwealth v. Pana, 469
Pa. 43, 364 A.2d 895 (1976). (The conviction was reversed after the trial
judge improperly refused to permit the defendant to testify in Spanish
through an interpreter, thereby interfering with his right to testify.)
Language issues arise in various ways throughout the criminal process. The
right to counsel may be denied when a defendant and his or her counsel
cannot communicate clearly and lack an interpreter to bridge language
differences. The difficulty may begin at the time that counsel is appointed or
retained, and may continue throughout the pretrial, trial, and post-trial
process. When a written translation of the charging documents has not been
made, the defendant may not be adequately informed of the charges against
him and may thus be unable to participate in his own defense. United States

21

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

v. Mosquera, 816 F.Supp. 168 (E.D.N.Y. 1993). Also, a defendant who is
not provided with simultaneous interpretation of witness testimony during
trial may lose the right to cross-examine the witness effectively. Whenever
language services are needed, the failure to provide interpretation or
translation by individuals with sufficient language skills and training may
create an issue as to whether the right has been adequately protected.

22

The Federal Court Interpreters Act, 28 U.S.C. §1827, mandates for all
federal criminal proceedings the use of certified or otherwise qualified
interpreters for people who primarily speak a language other than English.
Many states have enacted similar statutes, rules, or state constitutional
amendments mandating the appointment of court interpreters for LEP
defendants in criminal cases.
Constitutional principles can also apply to civil and administrative
proceedings, although precedent in these areas is less firmly established
than in criminal cases. Fundamental due process and equal protection
rights grounded in the Fifth and Fourteenth Amendments are implicated
when an individual is threatened with loss of property interests in court, or
is denied access to court for enforcement of legal rights on the grounds of
his or her ability to speak or write well in English. (See i.e., Gonzalez v.
Commonwealth, Unemployment Comp. Bd. of Review, 39 Pa. Cmwlth. 70,
395 A.2d 292 (1978).) (The dissent found that failure to provide
simultaneous interpretation of adverse witness testimony during an
administrative hearing deprived claimant of equal protection and due
process.) Non-criminal proceedings can adjudicate critical legal matters
such as protection from abuse, child custody, support, and divorce;
dependency, termination of parental rights, and adoption; eviction and
housing or health code enforcement; mortgage foreclosure; and eligibility
for unemployment compensation, worker’s compensation, mortgage
assistance, and welfare benefits. Claims for damages represent potential
gain or loss of money, property, and assets. Concerns should be heightened
when an LEP defendant is involuntarily summoned to court and may suffer
loss of significant property or other interests. Fundamental fairness suggests
that when important interests are at stake, the court should level the
playing field, at least to the extent of permitting both sides to understand
and participate in proceedings without regard to English language ability.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

In 1997, the American Bar Association also adopted
a resolution that “recommends that all courts be
provided with qualified language interpreters in order
that parties and witnesses…may fully and fairly
participate in court proceedings.”
—ABA Resolution, Rep. No 109 (adopted Aug. 1997)

Some jurisdictions have mandated the provision of interpreters for LEP
litigants in civil court proceedings. For example, interpreters are required in
federal civil proceedings in which the United States is the plaintiff,
including bankruptcy matters. 28 U.S.C. § 1827(d). A growing number of
states also mandate by statute or by court rule that interpreters be provided
in certain civil cases. Cal. Code Civ. Proc. §116.550; Ind. Code Ann.
§ 34-1-14-3 (1998); KS ST § 60-243 (2000); Mass. Ann. Laws ch. 221,
§92 (2001); Minn. Stat. §546.42 (1996); Or. Rev. Code § 45.275 (1996);
Utah Code of Judicial Administration Rule 3-306 §12(A); Va. Code Ann.
§ 8.01-384.1:1 and Wash. Rev. Code § 2.43.02 (1996). In 1997, the
American Bar Association also adopted a resolution that “recommends that
all courts be provided with qualified language interpreters in order that
parties and witnesses with no or limited command of English…may fully
and fairly participate in court proceedings.” ABA Resolution, Rep. No 109
(adopted Aug. 1997). The failure of courts and administrative agencies to
provide qualified interpreters to persons with limited English proficiency
can also violate federal civil rights laws. Section 601 of Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d, states: “No person in the United
States shall on the ground of race, color or national origin, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance.” Language ability has been recognized as a proxy for national
origin in discrimination cases. (See i.e., Gutierrez v. Municipal Court of
S.E. Judicial District, 838 F.2d 1031 (9th Cir. 1988), vacated as moot, 490
U.S. 1016 (1989).) Regulations implementing Title VI bar national origin
discrimination including the unintended disparate impact of seemingly
neutral policies. Lau v. Nichols, 414 U.S. 563 (1974) (Failure to provide
special language instruction to Chinese students violates Title VI
regulations.)

23

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

In 2000, all federal departments and agencies were ordered by the President
to develop policy guidances to improve access by LEP persons to federally
funded services. Executive Order 13166, 65 F.R. 50121 (Aug. 16, 2000).7
The guidances, which continue to be published by federal departments and
agencies, impose responsibility upon state recipients of federal funds to
ensure that LEP persons have meaningful access to services and benefits.
Funded entities must develop and implement comprehensive policies for the
provision of language assistance at no charge to the LEP individual.

24

Pennsylvania courts receive from the United States Department of Health
and Human Services (HHS) funds relating to the collection of child
support, and may also receive funds from the Department of Justice and
other federal agencies and programs. Pennsylvania courts receiving such
funds are therefore required to comply with the applicable department
guidances.8
Many state agencies receive federal funds subject to the requirements of
Title VI. The agencies also conduct formal hearings which result in
decisions that are reviewed by the Commonwealth Court on the record
made therein. Among those agencies are the Pennsylvania Department of
Labor and Industry, which receives extensive funding from the U.S.
Departments of Labor and HHS, including funding that is the basis of
operations of the Unemployment Insurance Compensation system, the
Employment Service and the Bureau of Disability Determination. Since
Unemployment Compensation Insurance administrative appeals are
reviewed by the Commonwealth Court on the record made before the
Unemployment Insurance Compensation Appeals Board, they too are
subject to Title VI requirements.9 Similarly, the Department of Public
Welfare receives HHS funding and is subject to Title VI requirements.
To the extent that the state courts and agencies that conduct administrative
hearings are recipients of federal funds, Title VI mandates that broad
policies be instituted to ensure that the proceedings are fully accessible to
LEP persons. Considerations regarding language-based discrimination
apply equally to questions of providing access to those who are hearing- or
vision-impaired. These requirements, however, arise under the Americans
with Disabilities Act, 42 U.S.C.§12101 et. seq., and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §794.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

RESEARCH METHODOLOGY
The Committee sought quantitative data about the need for interpreter
services in Pennsylvania through three survey instruments. The first, the
Community Agency Survey, was drafted by the Committee and distributed
in 2001 to community service agencies across the Commonwealth. The
second survey was prepared and circulated in 2000 among all Court of
Common Pleas Judicial District administrators by the Pennsylvania
Association of Court Management. The third survey, the Philadelphia
Court Interpreter Services Study, was conducted by the National Center for
State Courts and distributed to Philadelphia County court administrators
and personnel in 1995.

THE COMMUNITY AGENCY SURVEY
The Committee’s initial source of survey data was its Community Agency
Survey, a questionnaire that asked local community agencies with LEP
clients to describe the experiences of their staff and clients concerning the
need for interpreters in the Pennsylvania court system. The survey was
distributed to 157 agencies, of which 41 responded. A large majority of the
respondents were from the central and southeastern part of the
Commonwealth, where most of the LEP population is located. The
responding community agencies surveyed are located in 13 Pennsylvania
counties, but serve at least 24 counties. Many of the agencies are
headquartered in either Harrisburg or Philadelphia.
Participants in the Community Agency Survey were asked to address a wide
range of language and interpretation issues. The survey requested that they
list languages spoken by their clients and the languages for which there was
the most frequent need for interpretation. Agencies were then asked to
address how the courts meet their clients’ interpretation needs; the general
availability of language services in their area; and the arrangements they
make to address the needs. Questions also covered the role that the
participating agencies played in providing interpretation or translation
services, and the compensation supplied for those services. Finally, the
survey addressed translation services and provided an opportunity for
participants to suggest methods of addressing deficiencies in the system.
Respondents reported that Spanish, Vietnamese, and Russian were the
languages for which interpreter services were most frequently requested.

25

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

Eight other languages were reported by at least 10 percent of the
respondents: Cambodian, Korean, Arabic, Cantonese, Haitian Creole,
French, Mandarin, and Laotian.10
The survey demonstrated the extent to which LEP litigants are relying upon
informal sources of language services:

26

TABLE 1
(Q1) Who is meeting the need for interpreter services?
(check all that apply)
Arrangement
Court-provided professional interpreter

Frequency of
Response

Percent of
Respondents

17

41.5%

Court administrative staff

1

2.4

Litigant-provided professional interpreter

4

9.8

Community agency

25

61.0

Family member or friend

29

70.7

Other arrangements include using an interpreter phone service, volunteers,
community people, and a courthouse janitor.
In a related question, the survey asked what arrangements were made when
the court did not provide interpreters. The most common arrangement
reported was for the community agency to provide interpretation services.
The survey found agencies enlisting interpreters from any source available.
Only two agencies hired professional interpreters. The majority of
respondents did not know how or where to request interpreter services.
Nearly 15 percent reported experience with state courts or agencies that
refused to provide a court interpreter. Nine of the agencies, or 22 percent,
said their clients had had contact with courts or agencies that did not
provide translation of key written information.
Among the responses received were general observations that many LEP
persons perceive a language bias in the courts and feel intimidated because
their English language skills are poor or non-existent. This was reported by
MidPenn Legal Services to be “very true at the district justice level and the
administrative court level.”11

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

PENNSYLVANIA ASSOCIATION OF COURT
MANAGEMENT RESEARCH, PLANNING &
DEVELOPMENT COMMITTEE COURT INTERPRETER
AND TRANSLATOR SURVEY
In 2000, the Pennsylvania Association of Court Management’s Research,
Planning & Development Committee conducted the Court Interpreter and
Translator Survey, the results of which were reviewed by the Committee. A
total of 41 of the 61 Commonwealth judicial districts responded to this
survey. It addressed the following issues: the responsibility of the court to
provide language and sign interpreters; the availability of interpreters;
interpreter qualifications, including testing and certification; and interpreter
compensation.
Participants were also asked to discuss the use of technology in their
provision of interpreters, and to voice an opinion on whether Pennsylvania
should become a member of the Consortium for State Court Interpreter
Certification.
The survey found fairly substantial support among court administrators for
the notion that the court should provide interpreter services:
TABLE 2
(Q1) Percent of respondents that believe the court should provide
language interpreters by situation
100

100
80

80.5

75.6

60

65.9

40

41.5

41.5

20

0
Criminal
Witness

Civil
Witness

Defendant Parties in
Civil Case

*Ordered to Court Supervision/Programs

Juror

Offender*

27

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

Respondents were then asked to indicate the availability of interpreters in
their respective judicial districts and their needs for interpreters in 2000.
Significantly, nearly 20 percent of the responding court administrators
indicated that the availability of interpreters was a “major problem” and
an additional 60 percent indicated that it had been at least a “minor
problem” for them. While the First Judicial District in Philadelphia
indicated that it generally did not have problems except for certain
languages, that office noted that problems could arise from an immediate
mandate for certified interpreters.

28
Some respondents indicated the languages for which their court used
interpreters in 2000, and some trends did emerge from the data. In general,
Spanish was the language generating the greatest need for interpreters
(81 percent of the responding districts). The next most frequent need was
for sign language interpreters (73 percent). Eleven different languages were
cited by at least 10 percent of the court administrators for which
interpreters were needed.12
A significant percentage, or 32 percent (13 of 41), of the respondents
reported that their courts had video conferencing equipment available for
video interpreting, while fewer than 15 percent reported use of an audio
interpreting service. One additional district had the video conferencing
technology, but did not use it for interpretation.
Finally, respondents were asked whether Pennsylvania should join the
National Consortium for State Court Interpreter Certification
(consortium). Fifty-nine percent of respondents said they needed more
information about the consortium before they were able to answer the
question, suggesting a lack of expertise among local administrators in
issues of interpreting. Thirty-four percent favored joining, while only two
respondents said Pennsylvania should not join the consortium.

PHILADELPHIA COURT INTERPRETER SERVICES STUDY
The Committee also reviewed the 1995 Philadelphia Court Interpreter
Services Study, conducted by the National Center for State Courts (NCSC).
The study addressed the qualifications required for professional
interpreters; qualifications for contract interpreters; program management;
and whether or not the court would benefit from a review of its rules
and practices related to the use of interpreters. Although the focus of the

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

study was the Philadelphia court interpreter system, the results are relevant
to the general issues being examined by the Committee.
The NCSC administered the New Jersey Screening Test for Interpreting
Proficiency to nine Spanish staff interpreters in Philadelphia. Seven passed
the exam. The test results suggested the strengths and weaknesses of the
tests currently in use in Philadelphia. Five of the staff interpreters tested at
or above the 98th percentile established among those who have taken the
exam in New Jersey, but two of Philadelphia’s interpreters failed. The study
recommended that Philadelphia consider joining the consortium and using
standardized tests for interpreter applicants. The study also found that
the pay levels for staff interpreters were inadequate; they were paid far less
than Philadelphia court reporters and interpreters working in New Jersey.
The NCSC recommended that the court raise interpreter salaries at least to
the level of court reporters as soon as possible.
NCSC also found that contracted interpreters for languages other than
Spanish were not formally tested, and some agencies did not provide
training. According to the study, “Experience in other states and local
courts suggests that without a program of testing or other meaningful
screening, a majority of the interpreters who are used in courts are not
qualified for court interpreting.”13 NCSC recommended using salaried staff
interpreters in languages other than Spanish, depending on the volume
of work. Additionally, NCSC recommended screening of agency
interpreters to improve their skill levels.
The study also recommended changes in the management of interpreter
services, which were found to be fragmented and without adequate
coordination, data gathering, and program leadership. To improve
operations and streamline services, NCSC proposed the creation of a
centralized office covering all divisions of the Philadelphia County court
system, led by a senior manager who would oversee the supervising
interpreter, formulate policy, and establish data gathering and
evaluation systems.
Despite the many suggestions in the report, the study noted that the
interpreting services provided to Spanish speakers in Philadelphia County
are generally of high quality, especially when compared to many other
major metropolitan areas.

29

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

In particular, Philadelphia County has conducted training of court
interpreters, and has produced training materials for a court interpreter
orientation seminar as well as an interpreter’s manual for domestic violence
cases entitled Interpreters Manual for Courtroom #3—Abuse Court.
Additionally, in a program called Racial, Ethnic, and Gender Fairness in the
Courts, supporting materials addressing the needs of LEP litigants were
developed and presented by the Philadelphia Court of Common Pleas to
judges and their staffs.

30

Philadelphia County employs eight interpreters, all of whom work full-time
for the court. Of the eight, Family Division employs two full-time
interpreters and provides Spanish translations of court documents.
Municipal Court employs two interpreters who work exclusively for that
division, and there are four full-time interpreters who work for the
Criminal Division. Philadelphia County also regularly collects court data
that include a listing of the languages for which interpreters are requested
each year; the frequency with which interpretation for each language is
requested; a log of requests for interpreters; a listing of interpreter agencies
used by the court; a listing of costs for hearings for which interpreters are
provided; and an annual report submitted by the family court interpreters
employed by the court.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

PUBLIC HEARING TESTIMONY
The Committee heard about the experiences and concerns of LEP litigants
at the six public hearings it conducted in 2000 and 2001 throughout
Pennsylvania. Among those testifying at the hearings were academics and
experts who have studied the issue; professionals who work with and
advocate for these individuals; and average citizens who shared their
personal experiences and suggestions for addressing deficiencies in the
system. For the most part, the testimony consisted of anecdotal evidence
about current deficiencies in interpretation services.
The main issues raised by witnesses included the following:

LACK OF STANDARDIZED MEANS FOR PROVISION OF
INTERPRETATION SERVICES
Courts in Pennsylvania have no standardized means for providing
interpretation or translation services. Some courts use agencies, some
appoint interpreters on an ad hoc basis, and some provide no interpretation
services at all. Relatives and friends of the parties are sometimes asked to
translate court proceedings, and advocates and observers have reported
being pressed into service as interpreters by the court. An advocate from
Harrisburg testified that she attends spousal abuse hearings with her clients
to provide emotional support, and that while present at such hearings,
she has been asked to interpret for the accused as well. “I feel very
uncomfortable doing this, because my presence at the court is to support
my client and to help him or her with his or her needs,” the advocate said,
adding that she felt it was both unethical and a conflict of interest for her
to perform this service.14 The problem of access to competent interpreter
services is especially pronounced in juvenile court, where the child, who is
the defendant, is often placed in the position of interpreting the proceedings
for his or her parents. In addition to the obvious potential for a conflict of
interest, the use of a bilingual child as an interpreter can be detrimental to
both the defendant and to the family as a unit. LEP litigants are also
affected by monetary considerations because interpreter services are too
expensive for most of them to afford.

31

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

LACK OF STANDARDS FOR INTERPRETER
QUALIFICATIONS

32

Pennsylvania courts do not have set standards by which to evaluate
interpreters’ qualifications.15 In general, the pay scale in Pennsylvania’s
court system is inadequate to attract and retain well-trained and qualified
people. Further, because the courts do not pay travel expenses, agencies
are unable to send experienced interpreters to suburban and rural counties.
The practice of using unskilled, poorly qualified, and uncompensated
interpreters can easily lead to misinformed juries and judges when the
interpreter misstates or misrepresents what the litigant has stated. Such
misrepresentations can significantly affect the outcome of a trial. The
problem is compounded by the fact that there is no avenue by which LEP
litigants can object to the adequacy of the interpretation services.

INTERPRETATION AND BILINGUAL STAFFING
NEED TO BE ENHANCED AT THE INITIAL CONTACT
WITH THE SYSTEM
Most LEP litigants first come into contact with the court system through
court staff, process servers, or, in criminal cases, police. Each of these
encounters generally occurs only in English. Indeed, at every stage of
the justice system, LEP persons encounter court staff who are able to
communicate only in English. The procession of English-speaking intake
workers, secretaries, attorneys, and judges may leave LEP participants in
the justice system unable to understand the proceedings. The language
problems resulting from the predominance of monolingual court staff is
most pronounced with Spanish-speaking parties. Given the status of
Latinos as the fastest growing population in the U.S., projected to be
one-fifth of the population by 2025, the courts should give priority to the
hiring of bilingual, bicultural staff. Such staff are able to serve LEP parties
efficiently by delivering services in Spanish and other languages without
the need for an interpreter.
LEP litigants may need both interpretation and documentary translation,
which are distinctly different services. Anna Arias, an advocate in
Wilkes-Barre, explained: “In Pennsylvania, the role of district magistrate
is especially important because it is the entry point in what can become
a long, confusing, and sometimes terrifying journey through the criminal
justice system for recent immigrants who are unfamiliar with American
laws.”16 Arias went on to tell the story of a young adult Latino male

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

arrested on a drug charge who had no interpreter present during police
questioning following his arrest or at the magistrate hearing. Arias, who
had been called to interpret but was detained at another hearing, testified:
“I arrived during the hearing. As the defendant was being led out
of the courtroom, he asked me in Spanish to explain what had
just happened. The police officer told me not to speak to the
defendant. I told the police officer that the defendant didn’t
know what was going on, and I wanted merely to explain why
he was being taken back to jail. The policeman said, ‘Let his
attorney explain.’ His attorney does not speak Spanish.”17
District magistrates need information and training about the threats to civil
liberties that stem from poor enforcement decisions—and in extreme cases,
fatally flawed prosecutions—that end up in their courts. At a minimum,
a commitment to providing interpreter service at all levels is a necessary
condition for sorting out such cases involving LEP persons.

NEED FOR JUDICIARY TRAINING

“I later heard from another colleague that the judge had
a hard time understanding my client…And because
he couldn’t understand her, he decided that her claim
did not have enough merit to be granted a PFA.”
—Attorney Rebecca Ardoline

As a general rule, judges lack the training necessary to distinguish between
litigants who understand rudimentary English and those who are truly
proficient in the language. As a result, a judge may conclude that a litigant
does not need an interpreter because, for example, she can respond
appropriately when asked to state her name and address. At the State
College public hearing, an advocate told the story of a Korean client
who was denied a protection from abuse (PFA) order against her white,
native-born American husband. At her PFA hearing, the woman testified
that her husband had threatened to kill her, that she was afraid of him
because he had been in the military and had expertise in firearms, and that
he controlled the family through his control of their finances. The judge
denied the PFA but granted some economic relief consistent with a pending
divorce. The advocate remarked:

33

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

“I later heard from another colleague that the judge had a hard
time understanding my client. During the hearing he did not ask
for clarification. He did not suggest that my client testify via a
translator. And because he couldn’t understand her, he decided
that her claim did not have enough merit to be granted
a PFA.”18

34

Judges and court staff should receive training in the need for, and effective
and proper use of, interpreters who can provide the oral and written
assistance that a non-native English speaker may need in order to negotiate
the system successfully and fairly. There have been few efforts by the courts
to have important legal notices translated into languages other than
English. Dauphin County has a few notices available in Spanish. At the
time of the survey, Philadelphia County had only one translated document
available in Spanish, the guilty plea colloquy.

RAPID GROWTH OF PENNSYLVANIA’S NON-ENGLISH
SPEAKING POPULATION
Paul Uyehara of the Language Access Project, operated by Philadelphia
Community Legal Services, testified to the recent large increase in the Asian
ethnic population in Pennsylvania, many of whom do not speak English
proficiently. Uyehara also pointed out that in Pennsylvania, more than half
of the Asian American population are not native English speakers.19 Most
social workers and attorneys in Pennsylvania are not familiar with the
cultural background of Asian Americans, moreover, so there is a built-in
barrier to effective representation.20
Counties in Northeastern Pennsylvania have experienced rapid growth in
Latino population, and Latinos overall are the fastest growing ethnic
population in the Commonwealth, increasing 69.6 percent between 1990
and 2000, compared with 3.3 percent for the general population.21 Each
August, a multimillion-dollar tomato harvest draws several hundred
Spanish-speaking migrant farmworkers to Northeastern Pennsylvania.
According to the latest census, the Latino population in Luzerne County
has grown 84 percent since 1990, exceeding the Commonwealth’s rate
of increase. Wilkes-Barre’s Latino population has almost doubled while
Hazelton’s has increased almost fivefold. Lackawanna, Monroe, and
Columbia counties show similar trends. The numbers of Latino immigrants
from South and Central America and the Caribbean have all increased,
introducing dialects and cultures that differ from those of the established
Puerto Rican population.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

CULTURAL DIFFERENCES WITHIN MINORITY
COMMUNITIES

“It is not enough for a witness to have their testimony
translated, especially if they’re a party in a case. They
have to understand what is going on around them.”
—Attorney Arthur Read

Finally, there are substantial cultural differences between different
immigrant, migrant, and refugee communities and the dominant culture.
These differences can severely interfere with the effectiveness of purely
literal interpretation or translation and with an individual’s comprehension
of the legal, judicial, or administrative processes at work in his or her case.
As Arthur Read, general counsel for Friends of Farmworkers, said at the
Philadelphia public hearing, “It is not enough for a witness to have their
testimony translated, especially if they’re a party in a case. They have to
understand what is going on around them.”22 A related issue is that
attorneys and the courts do not provide sufficient time for LEP litigants to
comprehend the proceedings, leaving the litigants poorly equipped to make
informed decisions.

35

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

OTHER STATE SYSTEMS AND THE STATE
COURT INTERPRETER CERTIFICATION
CONSORTIUM

36

The scattered and inadequate provision of interpreter services for
LEP litigants in Pennsylvania today mirrors the situation of LEP litigants
in other states in the early 1990s. As recently as 1994, few states had
comprehensive statewide mechanisms for ensuring that interpreters
possessed the minimum skills required for interpreting adequately in a legal
setting. Due in part to the lack of financial resources, most state court
systems did not respond to problems created by inadequate language
interpretation.
Since the mid-1990s, this situation has changed markedly. In 1995,
after extensively studying the problems of LEP litigants, the National
Center for State Courts established the State Court Interpreter Certification
Consortium, with initial participation by the states of Minnesota, New
Jersey, Oregon, and Washington. The consortium was formed to respond to
the findings by many state commissions, studies, and other investigations
that the needs of LEP litigants were not being met in state courts and that
the litigants’ rights to equal justice were being severely limited. The
consortium also became a means for states to share expertise and the
expense associated with developing and administering testing and
certification programs for interpreters.23 Establishment of the consortium
was one of four pressing initiatives identified in the NCSC study, along
with interpreter training, referral databases, and judicial education.
A total of 29 states had joined the consortium by September 2002.24 The
members have interpreter programs containing some or all of the following
components:
•

Adoption of the Code of Professional Conduct for Interpreters;

•

Creation of a court interpreter advisory committee or task force;

•

Consortium membership;

•

Employment of state office program personnel;

•

Adoption of state supreme court rules or administrative orders governing
interpreter qualifications; and

•

Implementation of regular statewide orientation and training programs
for interpreters.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

Philadelphia remains the only Pennsylvania county that attempts to
provide interpreter services to courts in a systematic manner. Interpreter
certification and training—two key components in an interpreter
system—do not exist in the Commonwealth.
Given the clear need for a statewide system of providing certified
interpretation services, the multi-state consortium is one avenue for
Pennsylvania to pursue in attempting to meet its needs. Although there
is a fee for membership in the consortium, the cost is less than the
Commonwealth would spend to create its own certification and training
program for interpreters. Membership in the consortium provides testing
in 11 languages; training for interpreters employed by the state court
system; a standard of test validity and reliability to protect the courts
from legal challenge; test credibility; reciprocity between states; test
administration innovations; and comprehensive interstate networking.
Some states that have yet to implement interpreter certification programs
have nonetheless recognized the need for statewide regulations to ensure
consistency in interpreter qualifications. For example, while legislation in
Florida to create a statewide certification program is still pending, the state
adheres to NCSC procedures and administers the NCSC examination.25
Mississippi, which has no program in place, has pending legislation that
would provide for interpreters in all state courts, and would regulate the
certification of the interpreters.26

37

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

GENERAL FINDINGS
After reviewing relevant testimony, research findings, and survey data,
the Committee found fundamental statewide deficiencies in the treatment
of LEP litigants. These deficiencies undermine the ability of the court
system to determine the facts accurately and to dispense justice fairly.
Key findings include:
•

Some courts are allowing cases involving LEP parties, including criminal
defendants, to proceed without interpreters.

•

Some courts routinely allow untrained, non-professional individuals,
including relatives and friends, to act as interpreters.

•

Paid court interpreters are permitted to interpret without any
demonstrated competency, especially when they are working under
contract.

•

The ability of the court system to determine facts and dispense justice is
compromised by inadequate language services.

•

The lack of standards in Pennsylvania for the use of interpreters and for
determining interpreter competency compounds the problem of providing
access to justice for LEP persons.

38

SOME COURTS ARE ALLOWING CASES INVOLVING
LEP PARTIES, INCLUDING CRIMINAL DEFENDANTS,
TO PROCEED WITHOUT INTERPRETERS.
Civil and criminal cases are permitted to proceed without interpreters for
parties who cannot participate because of their limited English proficiency.
Proceedings sometimes go forward even when it is apparent that the LEP
party needs or has requested an interpreter. Fifteen percent of community
agencies surveyed by the Committee reported clients being refused an
interpreter in a court proceeding. Two witnesses recounted instances in
juvenile court proceedings in which the parents were forced to rely upon
interpretation by the juvenile defendant. Another witness observed an
arraignment that was conducted without an interpreter, in which a police
officer, following uninterpreted questioning of the defendant, presented
inaccurate and prejudicial testimony to which the defendant could not
respond. Judges, noting a person’s rudimentary English skills, may
improperly fail to appoint an interpreter even though the person is unable
to understand or participate in the proceeding without an interpreter.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

The court system appears to recognize the problem, but often does not
provide assistance to language minorities. All of the judicial districts
responding to the State Association of Court Management survey agreed
that the courts should provide interpreters to criminal defendants, and
about 40 percent thought interpreters should also be provided in civil cases.
The survey, however, did not determine the extent to which courts actually
provide services. In Philadelphia, for example, the courts provide
interpreters for criminal defendants and for Family Court matters, but not
for civil matters. The community agency and court administrator surveys
suggest that interpreters are generally not being provided around the state
in civil cases.
Translations of many essential documents, such as complaints and waiver
forms, are not available in Pennsylvania, and there are no document
translations into languages other than Spanish. Individuals who receive the
documents may rely upon family or friends for translation, or upon brief
oral summaries that may be incomplete or inaccurate.

SOME COURTS ROUTINELY ALLOW UNTRAINED,
NON-PROFESSIONAL INDIVIDUALS, INCLUDING
RELATIVES AND FRIENDS, TO ACT AS INTERPRETERS.

Several bilingual advocates who were in court to serve as
witnesses complained that judges had drafted them to
serve as interpreters, despite their apparent involvement in
the case and their lack of specialized training.
Since many courts do not provide professional interpreters, LEP litigants
are often forced to rely upon any readily available person as an interpreter.
Community agencies responding to the Committee survey reported that
family and friends are the most likely source of interpreters, followed by
the agencies and the courts. Such people often lack training in
interpretation for court hearings, and they may be less than fluent in one or
both languages. Several bilingual advocates who were in court to serve as
witnesses complained that judges had drafted them to serve as interpreters,
despite their apparent involvement in the case and their lack of specialized
training.

39

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

When unskilled interpreters appear in court, the LEP party is likely to
comprehend only a part of what is occurring. The interpreter may fail to
interpret some portion of the case, may fail to summarize what is being
said, or may interpret erroneously. The interpreter may give legal advice to
the litigant, answer on his or her behalf or change the meaning of what he
or she has said.

40

Judges and attorneys who are unfamiliar with the methods used for
interpreting are generally unable to identify shortcomings in, or the
accuracy of, an interpreter’s performance. Interpreting techniques are not
difficult to understand, but to most untrained people they are neither
natural nor intuitive. Untrained participants in an interpreted dialogue, like
untrained interpreters, tend to make the same errors. Untrained judges and
attorneys also do not intuitively grasp that even a fully bilingual person
cannot interpret well without special training.

PAID COURT INTERPRETERS ARE PERMITTED
TO INTERPRET WITHOUT ANY DEMONSTRATED
COMPETENCY, ESPECIALLY WHEN THEY ARE
WORKING UNDER CONTRACT.
Courts may hire staff interpreters to handle high-volume languages such
as Spanish. In Philadelphia, as mentioned above, two of the seven Spanish
staff interpreters had less than adequate scores on a screening exam, while
the others scored extremely well. The test results reflected both the strength
and weakness of Philadelphia’s screening process for staff interpreters.
Contracted interpreters are often used in court for less familiar languages
or in rural counties. Frequently, these interpreters are subcontractors
or employees of interpreting agencies. The interpreters tend to be tested
according to what one court interpreter administrator calls the
“appearance standard,” meaning the court is satisfied when an interpreter:
1) is available; 2) shows up on time; 3) is appropriately dressed and appears
professional; 4) appears to be bilingual; and 5) elicits no complaints.27
The NCSC Philadelphia study further noted that the court did not test or
screen contract interpreters, but instead relied on the interpreting agencies
to assure adequate skills and training. Based on its experience, NCSC staff
noted that without careful testing and screening, most agency interpreters
are not qualified to interpret. More than one witness testifying before
the Committee complained of interpreters lacking the fluency required for

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

court work, or lacking knowledge of proper techniques. Incompetent
interpreters may “lose” or distort important evidence, and they may fail to
communicate to an LEP person what is happening in the proceeding.

THE ABILITY OF THE COURT SYSTEM TO DETERMINE
FACTS AND DISPENSE JUSTICE IS COMPROMISED
BY INADEQUATE LANGUAGE SERVICES.
Courts and juries in cases involving untrained interpreters routinely receive
inaccurate or incomplete testimonial evidence. In such cases, many litigants
and witnesses may fail to comprehend questions fully, and may be unable
to communicate fully in English what they know. When parties fail to
understand the testimony of a witness, they may be unable to assist counsel
in effective cross-examination.
Determining the facts is a critical function of any trial court or
administrative hearing, and the current system of interpreting undermines
the court’s capability in this area. Whether the factfinder is a judge or jury,
inaccurate renditions of testimony threaten the integrity of the proceeding.
In this regard, many observers do not understand that poorly interpreted
witness testimony is similar to hearsay testimony. Professional interpreters
adhere to the standard of consecutive interpreting: add nothing, change
nothing, omit nothing. Untrained interpreters, on the other hand, tend to
summarize questions and answers, respond for the witness, and gloss
over nuances in language that may be critical to the evidence. Interpreters
may also make simple errors in phrasing or word choice because of an
inadequate command of one or both languages. When the factfinders, in
turn, misunderstand the interpreters, a second layer of distortion can occur.
On another level, an interpreter’s skill and appearance may influence subtle
credibility determinations made by the factfinder. Intonation, hesitation,
emotion, eye contact, and deference may all contribute to the appearance
of honesty or deceit.

41

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

THE LACK OF STANDARDS IN PENNSYLVANIA FOR
THE USE OF INTERPRETERS AND FOR DETERMINING
INTERPRETER COMPETENCY COMPOUNDS THE
PROBLEM OF PROVIDING ACCESS TO JUSTICE FOR
LEP PERSONS.

42

Deficiencies in court language services exist across the Commonwealth.
No jurisdiction is adequately meeting the need for interpreters, and the
standard of work performed in all jurisdictions reflects the lack of uniform
standards, training, and testing. This situation persists despite a growing
national consensus on the need for court interpreting that has already
placed Pennsylvania in a shrinking minority of states.
The court system would benefit greatly from the development of statewide
standards for performance and certification of court interpreters and from
training for judges and court staff on working with LEP parties. Standards
and protocols and model codes are readily available.
Certification exams, which are extremely expensive to design and validate,
are available to members of the State Court Interpreter Certification
Consortium, and other states have developed protocols to screen
interpreters in languages for which certification exams have not yet been
developed.
Court administrators suggested in the survey that they are receptive to the
development of uniform standards. More than 50 percent said they
preferred statewide testing and certification of interpreters rather than local
or regional control. More than 33 percent favored joining the consortium,
while 59 percent wanted more information before deciding.
Pennsylvania, unlike many states, has no ethical standards for court
interpreters. The Commonwealth could adopt a model ethical code that is
in use elsewhere, incorporating sections on testing for interpreters, training
in ethics, and rule enforcement.
Training for interpreters and those who work with them is a critical
component of a court interpreter system. Judges need to learn how to
determine if an interpreter is needed, how to establish the competence of
the interpreter, and how to supervise the interpreter in the court system.
Lawyers, likewise, can benefit from instruction in working with
interpreters. Justice would be served if training were mandatory for the
bench and the bar.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

RECOMMENDATIONS
In formulating the following recommendations, the Committee
acknowledges that the implementation of these recommendations is likely
to be costly. Nonetheless, they are essential to providing equal access to
justice to LEP individuals.

TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court: 28
1. Establish for all courts of the Commonwealth of Pennsylvania a policy
that all persons, including parties to judicial proceedings, witnesses
appearing therein, victims in criminal proceedings, and members of the
public seeking information from offices of the courts, shall have equal
access to justice in the judicial system of Pennsylvania without regard to
their English language proficiency.29
2. Require that all courts provide qualified interpreters to litigants at no
charge, in order that LEP parties and witnesses may fully and fairly
participate in court proceedings and obtain reasonable access to the
court system.
3. Require that the courts translate forms and other documents to the
extent necessary to provide access to the court system to those unable
to read English.
4. Require that all court interpreters obtain certification pursuant to a
recognized statewide certification program, maintain their proficiency
through continuing education, and adhere to standards of professional
conduct.
5. Require the adoption of a code of professional responsibility for
judicial interpreters together with mechanisms to assure that all
interpreters are familiar with the code and are subject to discipline for
any violation.
6. Establish within the Administrative Office of the Pennsylvania Courts
(AOPC) a Language Services Office,30 similar to those established by
other states, staffed by professional administrative personnel
experienced with issues related to court interpretation and translation,
and funded sufficiently to carry out its mission. (Please refer to Endnote
30 at the end of this chapter for a full listing of suggested services to be
provided by a Language Services Office.)

43

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

ENDNOTES
············································
1

“Limited English proficient” is a term generally used to encompass persons who are “non-English
speaking” as well as persons who do not speak English with sufficient fluency to function
effectively in a particular setting without oral interpretation or written translation assistance.

2

Of the 368,257 persons age 5 and over who do not speak English very well, 140,502 are Spanishspeaking and 76,183 are Asian and Pacific Islanders, according to Census 2000 figures. Census
2000, Table DP-2. Profile of Selected Social Characteristics, 2000. Geographic area: Pennsylvania.
DP-2. Profile of Selected Social Characteristics:
2000 Language Spoken At Home: Pop. 5 years and over

44

Data Set: Census 2000 Supplementary Survey Summary
Tables

Estimate

Percentage

Geographic Area: Pennsylvania: Population 5 years and over 11,555,538

100.0%

English only

10,583,054

91.6%

Language other than English

972,484

8.4%

Speak English less than “very well”

368,257

3.2%

Spanish

356,754

3.1%

Speak English less than “very well”

140,502

1.2%

Other Indo-European languages

428,122

3.7%

Speak English less than “very well”

138,542

1.2%

Asian and Pacific Islander languages

143,955

1.2%

Speak English less than “very well”

76,183

0.7%

Other languages

57,990

0.5%

Speak English less than “very well”

14,041

0.1%

U.S. Census Bureau, Census 2000, (December 2000)
<http://factfinder.census.gov/servlet/QTTable?ds_name=DEC 2000 SF3 U&geo
id=04000US42&qr_name= DEC 2000 SF3 U DP2>
3

In the first seven months of calendar year 2001, the First Judicial District of Pennsylvania
(Philadelphia County) received requests for language interpretation services in 35 different
languages and dialects. In addition to requests for services from eight full-time Spanish language
interpreters, the First Judicial District reported that of its remaining requests for interpretation
services: 30 percent were for Asian languages and dialects; 25 percent were for Russian and Slavic
languages and dialects; 18 percent were for sign language (including American and Spanish sign);
15 percent were for European languages and dialect; 5 percent were for Middle Eastern languages
and dialects; up to 2 percent were for African languages; and 5 percent were for other languages or
dialects only infrequently requested. Source: First Judicial District of Pennsylvania.
(continued)

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

In calendar year 2000, the First Judicial District of Pennsylvania (Philadelphia County) received
requests for interpreters in 57 different languages and dialects. These were identified as:
#

Language

#

Language

#

Language

1

Albanian

20

Haitian Creole

39

Romanian

2

Amharic: (Ethiopian)

21

Harbin

40

Russian

3

Arabic

22

Hebrew

41

Sign

4

Bangladesh

23

Hindi

42

Singhalese

5

Beijing

24

Hmong

43

Slovakian

6

Bosnian

25

Indian

44

Somalian

7

Cambodian

26

Italian

45

Sonike

8

Cantonese Chinese

27

Japanese

46

Spanish

9

Czechoslovakian

28

Korean

47

Syrian

10

Creole

29

Laotian

48

Taiwanese

11

Farsi

30

Malayalam

49

Tagalog

12

French

31

Mali-Solinga

50

Tigrina

13

Fuzhou

32

Mandarin Chinese

51

Tinera

14

Fukanese

33

Pakistani

52

Turkish

15

Fulani

34

Pashto

53

Ukrainian

16

Georgian

35

Persian

54

Urdu

17

German

36

Polish

55

Vietnamese

18

Ghandi

37

Portuguese

56

West African

19

Greek

38

Punjabi

57

West Indian

First Judicial District of the Court of Common Pleas response to Pennsylvania Association of Court
Management, Court Interpreter and Translator Survey.
Other Judicial Districts of the Court of Common Pleas, responding to Pennsylvania Association Of
Court Management, Court Interpreter And Translator Survey indicated the following additional
languages not identified by the First Judicial District: Croatian and Serbian (three judicial districts);
Egyptian (Arabic) and Thai (Monroe County).
4

Each of the Work Group members has extensive experience working with litigants with limited
English proficiency. Their experiences range from directing an interpreting services agency to
providing legal representation on a daily basis to litigants with limited English proficiency.

5

A bibliography of published material relevant to the issues studied by the Committee can be found
at Appendix Vol. I.

6

The Committee relied heavily upon Kathleen M. Sullivan, A Judge’s Handbook on Immigration
Law and Related Materials (Chicago: American Bar Association 2001), particularly Chapter 14
therein, “Court Interpreters: Appointment, Qualification and Effective Utilization,” as updated by
Sarah Paoletti, Esq., Friends of Farmworkers, Inc.

7

Executive Order 13166, 65 F.R. 50121 (August 16, 2000)
<http://www.usdoj.gov/crt/cor/Pubs/eolep>.

8

67 F.R. 4968 (February 1, 2002) <http:www.hhs.gov/ocr/>.
HHS’s Office for Civil Rights notes:
Title VI prohibits discrimination in any program or activity that receives Federal financial
assistance. What constitutes a program or activity covered by Title VI was clarified by Congress in
1988, when the Civil Rights Restoration Act of 1987 (CRRA) was enacted. The CRRA provides
that, in most cases, when a recipient/covered entity receives federal financial assistance for a
particular program or activity, all operations of the recipient/covered entity are covered by Title VI,

45

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

not just the part of the program that uses the federal assistance. Thus, all parts of the recipient’s
operations would be covered by Title VI, even if the federal assistance is used only by one part.
U.S. Department of Health and Human Services, Office for Civil Rights, Policy Guidance Title VI
Prohibition Against National Origin Discrimination As It Affects Persons With Limited English
Proficiency, Part C.1. (September 1, 2000). See extensive discussion at Part B thereof as to the legal
authority under Title VI for the HHS guidance.
Department of Justice Republished Guidance, 67 F.R. 41455 (June 12, 2002).
9

The Department of Labor LEP Policy Guidance, 66 F.R. 4596 (January 16, 2001)
<http://www.usdoj.gov/crt/cor/lep/dollep.htm>.

10

Other languages identified and the percentage of responding agencies identifying them included:

46

Language

% of Respondents

Spanish

78%

Vietnamese

44%

Russian

43%

Cambodian

27%

Korean

22%

Arabic

17%

Chinese - Cantonese

17%

Haitian Creole

17%

French

15%

Chinese - Mandarin

12%

Laotian

10%

Chinese – Fuzhou

7%

Amharic (Ethiopian)

7%

Portuguese

7%

Hindi

2%

Some respondents provided other detailed information about language needs identified in their
work. Other languages reported: Ukrainian (2), Khmer (1), Serbo-Croat (1), Bosnian (1), Albanian
(1), Pashto and Farsi (1), Lingala (1), Swahili (1), Romanian (1), Hmong (1), Tigrina (1), Dinka (1),
and Huen
11

MidPenn Legal Services, Lancaster Office, Response to a Community Agency Survey, 8.

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

12

The breakdown of the languages for which interpreters were identified as needed is:
Language

% of Respondents

Spanish

81%

Sign

73%

Russian

37%

Vietnamese

29%

Other Asian

24%

Polish

22%

Arabic

15%

Korean

15%

Cantonese – Chinese

15%

French

12%

German

10%

Croatian

7%

Italian

7%

Serbian

7%

Other Eastern European

7%

Haitian Creole

5%

Czechoslovakian

5%

Laotian

2%

13

National Center for State Courts, Philadelphia Court Interpreter Services Study, p. 14 (1995).

14

Testimony of Ho-Thanh Nguyen, Harrisburg Public Hearing Transcript, pp. 121–22.

15

Pennsylvania Association of Court Management-Research, Planning & Development Committee,
Court Interpreter and Translator Survey, Appendix Vol. I.

16

Written testimony of Anna Arias, Wilkes-Barre Public Hearing Transcript, p. 2.

17

Id.

18

Testimony of Rebecca Ardoline, State College Public Hearing Transcript, p. 81.

19

Testimony of Paul Uyehara, Philadelphia Public Hearing Transcript, p. 235.

20

Testimony of Im Ja P. Choi, Philadelphia Public Hearing Transcript, p.131.

21

U.S. Census Bureau, Census of Population, Profile of General Demographics for Pennsylvania:
(1990) & (2000).

22

Testimony of Arthur N. Read, Philadelphia Public Hearing Transcript, p. 139.

23

Madelyn Herman & William Hewitt, The National Center for State Courts and The Consortium
for State Court Interpreter Certification Program, American Translator’s Association Chronicle,
35–37, October 2001.

24

The states belonging to the consortium are Arkansas, California, Colorado, Connecticut, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois/Cook County, Indiana, Kentucky, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico,
North Carolina, Oregon, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin.

47

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

25

Louise Story, Interpreters Balance Scales, Court Interpreters Make Sure Everyone is Heard, and
Demand for their Services is Growing, Osceola Sentinel, July 2, 2001.

26

H.R. 718, 2002 Regular Session (Miss. 2002).

27

National Center for State Courts, Philadelphia Court Interpreter Services Study, Translating and
Bilingual Services Section of the Administrative Office of New Jersey Courts, Robert Joe Lee,
Director of Court Interpreting, pp. 16–17.

28

In its comments to the proposed Rule of Court Administration relating to Equal Access to Justice in
the Courts of the Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania should note
that it anticipates that in implementation of that Rule, courts will utilize the guidance which has
been provided under Title VI of the Civil Rights Act of 1964 relating to National Origin
Discrimination Against Persons With Limited English Proficiency pursuant to United States
Presidential Executive Order 13166, “Improving Access to Services for Persons with Limited
English Proficiency.”

29

The Committee notes that during the study, similar concerns were raised regarding the needs of the
hearing impaired. The Committee determined that the needs of the hearing impaired were beyond
the scope of its study but urges the Court to consider addressing the needs of the hearing impaired
and citizens with limited English proficiency at the same time since they involve similar issues and
solutions.

30

The Language Services Office shall be responsible for:

48

a) Enrolling the Pennsylvania Unified Judicial System as a member of the State Court Interpreter
Certification Consortium of the National Center for State Courts;
b) Establishing procedures for the employment, training, compensation, qualification, and approval
of staff and contracted court interpreters during the transition to statewide certification
standards;
c) Creating a comprehensive statewide system to assure qualified judicial interpreters, including:
i)

Adopting standards for the skills and qualifications required for different levels of expertise
of interpreters as well as job descriptions for interpreters and supervisors;

ii) Assessing the need for and implementing orientation training, certification training, and
continuing professional education;
iii) Overseeing the administration of consortium certification exams in available languages
needed by the courts; and developing testing protocols for languages for which consortium
exams are not developed;
iv) Determining the advisability of and standards for certifying knowledge of the Code of
Professional Responsibility for Judicial Interpreters; and
v) Developing guidelines for compensation scales for staff and contracted interpreters at
various levels of proficiency and experience.
d) Creating and managing a statewide administrative system for interpreting, including:
i)

Recruiting and hiring staff interpreters and contracted interpreters;

ii) Creating a system to assign interpreters efficiently, as needed, to proceedings across the state
to assure maximum use of the most qualified interpreters and the avoidance of delay for the
courts, the litigants, and the interpreters;
iii) Supervising the work of interpreters to maintain quality and professionalism; and
iv) Gathering and analyzing data on the need for, use of, and cost of the interpreter program,
and making recommendations for improvement of the system.
e) Developing protocols for the use of interpreters in courts and courthouses, including:
i)

Adopting a bench guide for judges to consult in the proper utilization and supervision of
interpreters in judicial proceedings, including standard voir dire questions for court
interpreters and for witnesses and/or litigants to determine whether appointment of an
interpreter is necessary;
(continued)

LITIGANTS WITH LIMITED ENGLISH PROFICIENCY

ii) Adopting standards for such matters as the techniques to be used by interpreters; the
correction of interpreter errors and objecting interpretation; and avoidance of interpreter
fatigue;
iii) Consistent with published Title VI guidances, identifying those vital written documents,
forms, posted notices, and signs utilized by the courts that should be required to be
translated to other languages and into which other languages such written materials should
be translated;
iv) Developing a system to create reviewable interpreting records, including (1) appropriate tape
recording of witnesses and interpreters and the proceedings to the extent feasible, so as to
have a complete record for judicial review and challenges to the adequacy of interpretation;
and (2) video recording of the witness and interpreter where sign language interpretation or
other assistance to hearing impaired persons is provided;
v) Developing policies and procedures for the use of video telephone conferencing systems for
court interpretation when qualified on-site interpreters are not available, assuring with those
policies that video interpreters are qualified;
vi) Determining means to provide meaningful access to LEP persons who are pro se litigants;
and
vii) Adopting procedures to assure that language services are provided to assist court-appointed
counsel in communicating with LEP clients in criminal and other matters.
f) Promoting increased hiring of bilingual and bicultural court staff able to deliver services to LEP
parties without the need for an interpreter, including development of job descriptions for
bilingual positions, providing fiscal support for upgrading skills of existing bilingual employees,
and recommending practices to facilitate recruitment and retention of bilingual staff.
g) Working with continuing legal education providers and the administrative office of the
Pennsylvania Courts to develop training and educational systems for attorneys, judges, court
administrators, and others as to issues relating to the equal access to justice for LEP persons and
for the utilization of court interpreters.
h) Engaging in study of other issues relating to providing equal access to LEP litigants and making
further recommendations in such areas as:
i)

Assessing how the cultural norms of immigrant communities may adversely impact their
ability to obtain equal justice in the judicial system and what remedial action is appropriate;

ii) Determining how foreign-born litigants’ immigration status may affect their rights to equal
access to justice in Pennsylvania judicial proceedings and how the adverse aspects of such
impact may be minimized; and
iii) Establishing mechanisms for providing members of LEP immigrant communities with
accurate information about their legal rights and options open to them, which could include
an explanation of the possibility of free or pro bono representation, lists of competent
referrals for different kinds of translation or other services, and types of problems which can
be addressed through the legal system.
i) Ensuring that all Pennsylvania courts and Commonwealth administrative departments or
agencies which conduct hearings that are subject to judicial review on the record also develop
procedures to comply with Title VI of the Civil Rights Act of 1964 and its implementing
regulations.

49

2

RACIAL AND
ETHNIC BIAS IN
JURY SELECTION

52

INTRODUCTION

54

SYNOPSIS OF FINDINGS

55

RESEARCH METHODOLOGY

74

PUBLIC HEARING TESTIMONY

83

OTHER TASK FORCE FINDINGS

94

BEST PRACTICES

97

RECOMMENDATIONS

99

ENDNOTES

RACIAL AND ETHNIC BIAS IN JURY SELECTION

INTRODUCTION

52

When the authors of the Bill of Rights wrote into the Sixth Amendment
“the right to a speedy and public trial, by an impartial jury of the state
and district,” they did not specify the nature of an impartial jury. The states
and districts were left to grapple with that definition as they set standards
and procedures for selecting juries. Since the early days of the republic, jury
service has remained a mark of citizenship and a touchstone of civic duty.
“Aside from paying taxes or registering with the Selective Service, it is the
only public service that is presently compulsory in American society,”
writes legal policy analyst Evan R. Seamone.1 Indeed, for those who are
called, jury service can be what Thomas Jefferson referred to as “the only
anchor, ever yet imagined by man, by which a government can be held
to the principles of its constitution.”2 For those who are not called or
cannot serve, however, jury duty can serve as a reminder that states and
districts have, at times, denied their citizens certain rights and
responsibilities of citizenship.
Today, the nature of the “impartial jury” remains a subject of debate in
Pennsylvania, both inside and outside the court system. In a pluralistic
society, what does an impartial jury look like? Do we achieve impartiality
by insisting on random selection of juries from a large jury pool, regardless
of race or ethnicity? Do we achieve impartiality by choosing juries that
look like representative samples of their communities?
The questions are not abstract and academic. “Are we impartial here?” is
a question that arises when a person of color looks across the courtroom to
see an all-white jury. The person of color may be a plaintiff or defendant,
prosecutor or defense attorney, witness or judge wondering how and why
the jury came to have so many people from Column A and none from
Columns B, C, D, and E. The person may wonder if a jury can be impartial
when its selection appears to have been otherwise.
The issue of racial composition of juries raises questions of public
confidence in the courts and their ability to judge all citizens impartially.
With Jefferson’s anchor in mind, this chapter examines how the
Pennsylvania courts include and exclude citizens of the Commonwealth
at each step of the jury selection process.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

Focus of Inquiry
In its study on Racial and Ethnic Bias in Jury Selection, the Committee
sought to determine whether minorities are substantially underrepresented
on juries in the Commonwealth, and, if so, to identify the causes of any
underrepresentation.

Sources of Information
The Committee obtained its data from four primary sources: 1) a survey of
all jury commissioners in the Commonwealth followed by a statistical
analysis of juror records in four representative counties in the
Commonwealth; 2) a statistical analysis of jurors selected for jury duty in
Allegheny County; 3) testimony from six public hearings and roundtable
discussions held throughout the Commonwealth; and 4) scholarly articles3
and findings from other state task force reports.

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

SYNOPSIS OF FINDINGS

54

Overall, the Committee determined through its analytical study and public
hearing testimony of jury commissioners that most jurisdictions in
Pennsylvania pay little heed to the racial composition of juries. Pressed for
an explanation, court administrators say that taking the race of prospective
jurors into account would be improper, illegal, or even unconstitutional.
An examination of the current policies of constructing lists of potential
jurors and choosing juries suggests that the policies, whatever their
rationale, fail at each step of the process to include a representative number
of minorities. In at least one large county4 in Pennsylvania, people in
predominantly African American and Latino neighborhoods receive fewer
summonses for jury duty, and the number of potential jurors consequently
declines because of difficulties with transportation, childcare, and work
rules that discourage jury participation by hourly employees. When
potential minority jurors do appear at the courthouse, in many jurisdictions
they are more likely than white jurors to be dismissed through the exercise
of peremptory challenges by prosecutors and/or defense attorneys tacitly
exhibiting their belief that a juror’s race may predispose him or her toward
conviction or acquittal of a defendant.
Efforts to increase jury participation by minorities also have been hampered
by a lack of reliable data about the racial composition of jury pools and
actual juries. Although more than half of the court administrators surveyed
by the Committee reported keeping information about the ages and places
of residence of potential jurors, there were no comparable data regarding
race. Among the databases from which names of potential jurors are drawn
generally, there is no question about race on driver’s license forms, and the
question is optional on voter registration forms.5 Potential jurors are asked
their race on the Jury Information Questionnaire (JIQ), which is mandated
for use in the Commonwealth’s criminal process and is also used by many
counties for all potential jurors. Information on the form is confidential,
however, and its use is limited to jury selection. Pennsylvania courts thus
compile little or no accessible data on the race of jury pool members. Some
court administrators contend that such record-keeping would be an
impermissible form of racial profiling. The lack of such records, however,
has consistently hampered attempts to determine the degree to which racial
and ethnic minorities are underrepresented in jury pools and actual juries.
The Pennsylvania Legislature has recently directed its attention to the issue
of the racial composition of juries. Spurred by news stories in several
newspapers across the Commonwealth,6 community groups have called for
changes in the system, and the state Senate Judiciary Committee recently
authorized an investigation of racial representation on juries in the
Commonwealth.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

RESEARCH METHODOLOGY
TAYLOR STUDY OF MINORITY PARTICIPATION IN
JURY SERVICE
The Committee engaged the services of Ralph Taylor, chair of the
Department of Criminal Justice at Temple University, to conduct a two-part
analysis of minority participation in jury service in Pennsylvania. The
research team also included Lillian Dote and Jerry Ratcliffe, both from
Temple University.
The study was completed in two phases. Phase I, completed in August
2001, examined the initial stage of juror processing, in which the courts
construct and maintain master lists of potential jurors. All jury
commissioners in every courthouse in the Commonwealth were asked to
complete a survey reporting on their processes. Phase II of the study
focused on four representative counties in the Commonwealth, and was
completed in June 2002. It geocoded address information of contacted
potential jurors, and examined the connection between the fabric of the
micro-neighborhood and the outcome of the contact attempt. In effect, it
was an examination of the “middle stages” of potential juror processing,
taking place between initial contact and showing up at the courthouse.
The outcome of interest was “yield,” defined as the total number of jurors
who actually show up at the courthouse on service day, out of all potential
jurors contacted in a neighborhood.
PHASE 1: METHODOLOGY AND FINDINGS

The Phase I study, entitled Understanding the Juror Selection Processes
Through Jury Documents and Administrator Surveys: Exploring Implications
for Under-Representation of Populations of Color,7 was undertaken
to develop a statewide picture of current jury selection processes. In June
2001, court administrators from each county were contacted and asked to
produce copies of the jury summoning documents used by each court.
The documents included the pre-qualifying questionnaire, the summons, and
the JIQ. Two weeks later, the project staff mailed questionnaires to the
court administrators. A total of 48 counties submitted copies of their jury
summoning documents and 46 submitted complete surveys in time to be
included in the analyses. Seven of the administrators, however, cover two
counties each, which means jury summoning documents were collected
for 55 of the Commonwealth’s 67 counties.

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

Pre-Survey Documentary Data
Models of Jury Summoning
The study identified six different models of jury summoning that were
being employed by Pennsylvania counties.
•

Model A uses separate qualification and summoning processes. Citizens
who return a pre-qualifying questionnaire are either sent a letter
excusing/disqualifying them for service, or they are sent a summons to
report on a certain date for the array. On that day potential jurors
complete the JIQ.

•

Model B combines the qualification and summoning processes. The first
mailing contains both the pre-qualifying questionnaire and the summons.
After returning the pre-qualifying questionnaire, some citizens are
notified by postcard that they have been excused or disqualified. The
others appear on the summons date and complete the JIQ.

•

Model C begins with an initial mailing that contains the summons, the
pre-qualifying questionnaire and the JIQ. It is identical to Model B except
that potential jurors complete the JIQ before arriving at the courthouse.

•

Model D uses two mailings. The first contains the pre-qualifying
questionnaire. Potential jurors who are neither excused nor disqualified
receive a second mailing with the summons and the JIQ.

•

Model E begins with a first mailing that includes both the pre-qualifying
questionnaire and the JIQ. Those who are excused or disqualified are
notified by postcard; the others receive a summons as the second mailing.

56

The survey showed Model B was used most widely, with at least 19
counties mailing the summons and pre-qualifying questionnaire at the
same time.

Format of Juror Documents
In examining the jury documents, the researchers noted the summons
format varied widely from county to county. Whether the summons was a
postcard, letter, or a tear-apart, computer-generated form, it specified a date
and time for the citizen to report to a courthouse.
The researchers found that pre-qualifying questionnaires covered standard
questions about citizenship, criminal convictions, English aptitude, military
service, and previous jury service, although the questions were often posed
in different ways. The greatest variations occurred in the sections on

RACIAL AND ETHNIC BIAS IN JURY SELECTION

criminal history. In addition to listing convictions, potential jurors in most
counties were asked to explain the convictions and, in at least one case, to
give detailed information. In addition, the survey found different ways of
handling Driving Under the Influence (DUI) convictions; some counties
asked expressly about DUI and some precluded it, while still others failed
to specify whether DUI convictions should be listed. All counties followed
the Supreme Court of Pennsylvania rule of excluding citizens who had
served on a jury within the past three years. Finally, several counties asked
for additional information in the pre-qualifying questionnaire, such as the
name of the citizen’s municipality, phone number, spouse’s name, marital
status, maiden name, name from a previous marriage, and other names
used in the past.
The survey confirmed that counties were using the JIQ that the Supreme
Court of Pennsylvania mandates for use in the criminal process. Many
counties used the JIQ for all potential jurors in civil and criminal courts,
although some counties used a modified version for civil court. The JIQ
asks for the citizen’s name, residence, marital status, race, occupation,
previous occupations, number of children, level of education, previous jury
service, and disabilities. The JIQ asks additional questions about personal
background and beliefs, such as whether the potential juror has been the
victim of a crime; has beliefs that would prevent him or her from sitting in
judgment; or would have problems in following the court’s instruction. The
questionnaire is confidential and cannot be used for purposes other than
jury selection.

Time Commitment and Compensation for Jury Service
The researchers found differences among counties with regard to the time
commitment required for the array (i.e., jury selection process) and the trial
term. The array is generally limited to one day, although several counties
require potential jurors to serve for two days or as long as one week. Those
who are selected for jury service, however, may be required to serve for as
long as several months. For example, at the array, in a few jurisdictions,
a citizen can be selected for several trials that will occur over the course of
a two-month trial term; the citizen then will be required to report to the
courthouse for the actual trials.
The study notes that some counties use a “one day, one trial” system that
selects jurors who serve either on one jury for the duration of the trial or
serve for one day. Anyone not selected at the array is sent home at the end

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

of the day. Other counties use a “date certain” system in which jurors
chosen at the array are notified in advance of the trial start date, ending
date, and length. In Clearfield County, which follows the “date certain”
model, it is not unusual for citizens to serve on more than one trial during
the two-month period.

58

The survey showed that counties varied in their descriptions of the time
commitment required for jury service, and some fail to distinguish in their
correspondence between the array service and the trial term. Many say “the
term of service is usually one week” without going into further detail.
The study also noted the payment for jury service, which is set by state
statute at $9 per day for the first three days of service and $25 per day
thereafter. Some counties reimbursed potential jurors for travel between
their homes and the courthouse, at a standard rate of 17 cents per mile.
Persons with disabilities will generally find no information about
accommodations in the information supplied by the courts, although a few
counties asked persons with disabilities to notify the courthouse before
reporting. Childcare services were mentioned only by Montgomery County,
which operates a free, licensed drop-in center across the street from the
courthouse.

Administrator Survey Data
Source lists
The court administrators and jury commissioners responding to the survey
cited at least nine different types of sources that were used to create their
pools of potential jurors. A total of 28 counties used lists of registered
voters, and 16 counties did not. Other sources used by the counties were
driver’s license lists (23 counties), taxpaying property owner lists (13),
occupational tax lists (five), telephone directories (four), per capita tax lists
(four), community organization lists (two), high school graduates (one),
and city earned income tax list (one). Two separate lists were used by
29 counties. Two counties used four lists, four counties used a single list,
and two counties reported using no lists at all.
Among the counties using lists of registered voters, 26 of the 28 updated
their lists at least once per year. Regardless of which lists they used, more
than half of all respondents reported updating their lists at least once per
year. In general, urban counties and large suburban counties were most

RACIAL AND ETHNIC BIAS IN JURY SELECTION

likely to rely on lists of voters and licensed drivers, while rural counties
often relied on a jurisdiction-specific source such as a per capita tax list or
occupational tax list. Adams, Bradford, Clarion, Indiana, Jefferson, Mifflin,
Perry, and York counties all reported using either a per capita tax list or
occupational tax list. As one respondent noted: “The per-capita tax list is
all-inclusive without regard to race, religion, whether or not they are
property owners or registered voters.”8
Administrators differed in their assessments of driver’s license lists, which
were generally regarded as up-to-date. One respondent said the lists were
more current and reliable than voter registration lists, but still contained
many old addresses; merging the two lists was therefore the way to obtain a
representative list, in that administrator’s view.
The researchers learned that most counties kept information about
summoned jurors’ ages and geographic locations, and some kept
information about gender, occupation, race, marital status, number of
children, education, employment, and status as a motor vehicle operator.
Few counties, however, reported reviewing the information regularly.
The survey showed that, as recalled by administrators, a typical county
issues summonses to about 3,000 jurors per year. The number of
summonses ranged from about 600 in Clinton and Potter counties to an
estimated 286,500 in Philadelphia County.

Excusals, disqualifications and no-shows
In studying excusals, the researchers on the survey listed 14 common
reasons for excusing potential jurors on the survey and asked whether each
of the excuses was accepted as valid. The responses showed more than 90
percent of the counties excused potential jurors for family responsibilities
(childcare or eldercare); for physical, mental, or medical conditions; for
military service or student status outside the area; and for being out of the
area temporarily.
Among the other reasons, 87 percent of the responding counties accepted
economic hardship as a valid excuse, while 67 percent accepted employer
hardship and 57 accepted “extreme inconvenience.” Being employed in law
enforcement was a valid excuse in 36 percent of the responding counties,
while being employed as a doctor or dentist was accepted as an excuse in
48 percent of the counties.

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

Excusals were granted for periods as short as a year or less, or as long as
five years. Several counties listed reasons for permanent disqualification
from jury service. The reasons included incarceration, advanced age,
illiteracy, and non-citizen status.

60

By comparing counties’ estimates of their excusals with the numbers of
citizens finally chosen for juries, the researchers were able to calculate the
percentage of summoned jurors who were excused in each county. The rate
was lowest in Allegheny County, which excused only 7.95 percent of those
summoned. Bucks County had the highest rate, excusing 59 percent.
The researchers also asked counties to estimate the numbers of “no-show”
potential jurors who failed to appear on the summons date. The median
number per county was 92 “no-shows” per year, and in several rural
counties there were fewer than 10. Calculations based on the counties’
sometimes rough estimates of “no-shows” indicated a median statewide
range between 2.5 and 4.2 percent, depending on the way the calculation
was performed.
The counties reported a set of divergent responses to the “no-shows,”
ranging from friendly letters and phone calls to scheduling contempt of court
hearings. Nearly half of the counties reported sanctioning potential jurors for
failing to appear for jury duty. The sanctions included fines, community
service sentences, and, in one case, a sentence of two days in jail.
Incentives for jury service were also covered by the study, which asked
whether the court system had supplied discounted parking, free parking,
free public transportation, free meals, vouchers for childcare, on-site
childcare, or vouchers for local businesses and restaurants. Among the
respondents, 74 percent had supplied free parking and 27 percent had
supplied free meals. In none of the other categories did as many as
5 percent answer “yes.”

Racial proportionality
In another area of the study, the researchers asked administrators to break
down the numbers of summoned and serving jurors by race. Only nine of
the respondents supplied numbers, and another 17 provided percentages;
virtually all of the figures were estimates. Comparing the estimated racial
breakdown of summoned jurors with the racial breakdown of the county
population as a whole, the survey found roughly proportional

RACIAL AND ETHNIC BIAS IN JURY SELECTION

representation in most counties. White jurors appeared to be
underrepresented in three of the reporting counties, although the
researchers cautioned that the result may have been based on inaccurate
estimates.
Using 1999 census estimates, the researchers noted that Pennsylvania had
only five counties with non-white populations of 10 percent or more—
Philadelphia and Allegheny; Montgomery and Delaware in suburban
Philadelphia; and Dauphin, which includes Harrisburg. Ten counties had
non-white populations between 5 and 10 percent, leaving the remaining
45 counties with non-white populations of less than 5 percent.
“The distribution of populations of color across the various administrative
units creates several challenges for achieving racially-balanced juries
throughout the Commonwealth,” the Phase I report said. “In about twothirds of the counties, achieving racial balance means locating ‘rare’
individuals—non-white jurors—in a population that is generally small.”9

Conclusions
The Phase I report suggested a variety of factors that “may have
implications for underrepresentation of persons of color on juries.”10 The
report explains, however, that information about the race of potential
jurors “does not appear to be available from the counties,” which
prevented the researchers from making a more definitive assessment of the
implications. “It is not known at this time if these implications warrant
concern because we cannot document whether these features do in fact
influence potential underrepresentation,” the report said.11 That said, the
implications were:
•

Low minority population across counties. Populations of color constitute
a sizable fraction of the population in only 15 of the 67 counties, as
explained above.12 In the remaining counties, it is a challenge to locate
minorities to serve on juries.

•

Counties follow one of several different models in summoning potential
jurors; among the variations are processes that could have implications
for underrepresentation.

•

Variations in juror summoning lead time, which the study defines as
“the amount of time between initial contact with a potential juror and
that juror actually being due in the courthouse to serve as a juror.”13
The survey documented variations from county to county. Increased lead

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

time may make underrepresentation of persons of color more likely,
based on the assumptions that lower-income households include
a disproportionately high number of households of color and a
disproportionately low number of homeowners. People who do not own
their own homes are more likely to move, and more likely to move
frequently, making them harder as a group to track over time.
•

Variations in time served. Some counties require more extensive jury
service than others. More extensive service creates greater hardship for
low-income wage earners who are more likely to depend upon hourly
wages. Given that income lost for jury service may constitute a large
share of household income in low-income households, those households
may seek to avoid jury service, especially if the service period is long.

•

Lists used and frequency of updating. The type of list in use may result in
underrepresentation of people of color, although previous studies suggest
that all lists do this to a roughly comparable extent. The less frequently
the lists are updated, however, the more likely they are to lose track of
lower-income, more mobile households, who are also more likely to be
populations of color.

62

The report concludes: “Most importantly, the information gathered
confirms the Committee’s suspicion that little data are available on race,
that counties generally do not compile juror attributes and, if they do
compile them, they very rarely examine these data. Because we have no
data on race of jurors summoned, it is not possible to know at this time
[during Phase I of the study] how significant the underrepresentation
problem is.”14

RACIAL AND ETHNIC BIAS IN JURY SELECTION

PHASE II: METHODOLOGY AND FINDINGS

The Phase II report, issued in June 2002 and entitled Potential
Underrepresentation by Race and Class in the Middle Stages of Juror Selection
in the Commonwealth of Pennsylvania: A Located Analysis,15 was undertaken
to examine minority underrepresentation in the middle stages of the jury
selection process.
“The stage for this investigation was set last summer after we surveyed
Pennsylvania jury administrators and commissioners,” the Phase II report
explains. “We learned that exceedingly few counties kept data on juror
race. We also learned that excusal rates, and the structure of the juror
summoning process, as well as the types of lists used, varied across
counties. From that work we drew two conclusions: First, we were not
going to be able to learn about representativeness of jurors at the middle
stages of selection processes from archival data available at the
courthouses; second, given how various counties structured the selection
process, there certainly was the potential for jurors to be underrepresented
along race or economic lines in the middle stages of juror processing.”16
For purposes of the study, the “middle stages” of the juror selection process
begin with the court’s initial attempt, usually by mail, to contact the
potential juror. The middle stages continue until the potential juror arrives
at the courthouse on the day of service. In this context, the relevant stages
of the process include the potential juror’s:
•

responding or not responding to the summons or requests for
information;

•

being classified as a qualified or eligible juror, or being disqualified;

•

requesting or not requesting an excusal;

•

having or not having the request for excusal granted;

•

being released from anticipated duty (surplused) because of an oversupply
of potential jurors; and

•

actually appearing at the courthouse on the day of service, after being
qualified and not excused and not surplused.

The Phase II report examined whether a potential juror’s “microneighborhood” of residence—a four-block area that will be further explained
below—influences the outcome of the potential juror’s contact with the
court. To investigate that central question, the researchers chose a sample of

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

four Pennsylvania counties—Allegheny, Lehigh, Montgomery, and
Philadelphia—that stood as a representative cross-section of the
Commonwealth’s minority population. The data were analyzed using
multilevel models, which also will be explained below.

Focus of Phase II

64

During Phase I of the study, the researchers were able to calculate each
county’s “yield” of jurors; that is, the number of potential jurors from the
contacted list who appeared for service as requested by the court.
According to the report, there were many reasons that a potential juror
might not appear for jury service. The most common were:
•

The initial contact did not reach the intended party;

•

The person failed to respond to the initial contact;

•

The person failed to qualify as a juror;

•

The person sought, and was granted, an excusal;

•

The person was surplused by the system prior to service day, due to a
lower than anticipated caseload; and

•

The person was unable or unwilling to appear on the service day.

By examining the middle stages of potential juror processing, the
researchers set out to compare any differences between the group initially
contacted about jury duty and the group that finally appeared at the
courthouse to begin jury service. One focus of the inquiry was to determine
whether potential jurors were more likely to drop out of the process—
or be dropped out of it—if they resided in a primarily African American
neighborhood, in a primarily Latino neighborhood, or in a neighborhood
with a relatively low average income or socioeconomic status.
The researchers noted that the starting point of the study was the group
of potential jurors who were initially summoned or contacted by the court.
Phase II of the study did not take into consideration what happened prior
to the initial contact attempt—i.e., how the list was constructed—nor did
it examine what happened during voir dire and the later stages of the juror
selection process. Stated differently, if underrepresentation by race or
income is introduced during the middle stages, it is not known if that
underrepresentation is counterbalanced or amplified in the last stages of
juror processing, taking place in the courthouse itself. But, it is known that
if underrepresentation does surface in the middle stages, it was introduced

RACIAL AND ETHNIC BIAS IN JURY SELECTION

at those stages, and cannot be attributed to earlier selection processes, such
as list construction.17
To model potential juror dropout at each point in the middle stages of
processing, the researchers needed precise data about people who were
contacted but failed to appear, or were dismissed as ineligible for service,
or were excused. Although jurisdictions kept track of the outcome of
each potential juror contact attempt, this was a variable process from
jurisdiction to jurisdiction. Different codes and postponement and excusal
policies were used. Jurisdictions also did not have information about the
potential juror’s race and income level. What the researchers elected to do
was to locate each potential juror, based on the address provided, and
use the attributes of his or her micro-neighborhood as a “proxy” for the
potential juror’s immediate social context.18

Key features of the analytic approach
In three of the four sampled jurisdictions, the courts provided the complete
addresses of all potential jurors contacted during calendar year 2001,
and the outcomes of the requests for services. Philadelphia County, due to
confidentiality concerns, scrubbed the last two digits of each address,
sometimes making for some uncertainty about the micro-neighborhood
to which an address belonged.
The sampled counties—Philadelphia, Allegheny, Montgomery, and
Lehigh—were chosen based on the size of their 1999 populations of color.
A county’s “chance” of being sampled was proportional to its population
of color. Since the researchers used representative sampling procedures, the
results are generalizable to the populations of color in the Commonwealth.
Addresses provided were geocoded—located at a specific point on a map.
Researchers successfully geocoded more than 85 percent of the addresses
provided in three of the jurisdictions. Once the address was located, the
attributes of the surrounding census block group or micro-neighborhood
could be attached to the address, and to the outcome of the contact
attempt. This allowed the researchers to try to “predict” the fraction of
contacted potential jurors in a micro-neighborhood who would show up
on service day, using the attributes of the micro-neighborhood as the
“predictors.” The researchers used racial/ethnic and age data from the
2000 census, but had to rely on socioeconomic status and stability data
from the 1990 census. In their consideration of neighborhood attributes,

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

the researchers could isolate the role of each “predictor” and learn, for
example, whether yield of potential jurors was affected by race or ethnicity
when two micro-neighborhoods were otherwise similar in terms of age
composition, socioeconomic status, and stability.

66

The study’s multilevel models permitted a variety of calculations. The
models describe the extent to which neighbors of the same microneighborhood “agree” with one another in terms of the outcome of jury
service. A high degree of agreement between neighbors suggests that group
processes are operating, and neighbors are influencing one another in
terms of the outcome. “If yield is influenced by shared attitudes toward the
criminal justice system among neighbors in a locale, or by shared
hardships, or by other factors, we would expect to see some neighbors
‘agreeing’ with one another on the outcome,” according to the Phase II
report.19 The multilevel models show how such agreement is arranged both
within and between groups of neighbors, enabling the researchers to
construct micro-neighborhood scores on average yield of jurors. The
models not only show differences in yield between micro-neighborhoods,
but differences in yield between neighbors in the same micro-neighborhood.
“Stated differently, we can learn how much of the variation in yield is a
function of differences between neighbors in the same micro-neighborhood,
and how much of it is a function of differences between neighborhoods.”20
Thus, the model recognizes how potential jurors are “nested” into different
neighborhoods.
In further explaining how the multilevel model approach can be used to
link census block-group characteristics with average micro-neighborhood
yield of potential jurors, the report notes that, in social science, it is
understood that relationships between observed attributes are specific to
the level of analysis at which they are observed. In other words, a finding
that people from neighborhoods with a high ratio of home ownership
are most likely to appear for jury service does not necessarily mean that
homeowners are more likely than renters to appear. The former case
describes an ecological relationship, while the latter case describes an
individual-level relationship. “Although ecological relationships set the
context for individual relationships, they do not completely determine
them,” the report notes in defining a term it uses extensively.21 Multilevel
models are widely used, the researchers report, in psychology, sociology,
education, and criminal justice, among other areas.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

Methods overview
The focus of the study was on populations of color, including African
Americans, white Latinos, Native Americans, and Asian/Pacific Islanders.
Counties with more households of color thus had a stronger chance of
entering the sample, which resulted in the choice of Allegheny, Lehigh,
Montgomery, and Philadelphia counties. The researchers were able to
geocode addresses for 94 percent of the Philadelphia names, 90 percent of
Montgomery, 87 percent of Lehigh, and only 83 percent of Allegheny.22
The last figure falls below the 85 percent level that geographers regard as
the threshold level for continuing the analysis to profile each block group’s
racial and ethnic composition, racial composition, socioeconomic status,
and stability; for that reason, the researchers said the Allegheny County
analysis “should be viewed with considerable caution.”23
Geocoded addresses were placed within micro-neighborhoods
corresponding to 2000 census block groups. A census block is four sides
of one block, while a census block group is usually a cluster of four
contiguous census blocks. It is the smallest spatial unit for which the U.S.
Census releases “long form” census information that includes economic
and occupational indicators.
According to the final report: “By considering all of these microneighborhood attributes, it can be determined whether race or ethnicity of
context affect yield, after removal of the effects on the outcome that arise
from age, stability or socioeconomic differences across microneighborhoods.”24

Analysis overview
The Phase II study noted that it was impossible to perform a statewide
examination of the specific steps in jury selection because different
jurisdictions had different rules and procedures. Allegheny and
Montgomery counties, for example, allowed members of the jury pool to
call-in the night before the summons date to learn whether they were
needed.25 Some jurisdictions did precise tracking of non-responses to the
initial summons, while others did not use a code allowing that to be
tracked. And some counties had a liberal excuse policy so that virtually all
qualified, non-excused potential jurors appeared on the day of service, and
there were virtually no “no-shows.”

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RACIAL AND ETHNIC BIAS IN JURY SELECTION

The analysis of the four counties in the sample was focused on “potential
juror yield”: whether or not a contacted potential juror appeared on the
day of service. Detailed results, including seven tables, are too extensive to
include in this chapter, but are available in Appendix Vol. I.
When the yield figures were linked to characteristics of the microneighborhoods, the researchers were able to make the following
observations about race and ethnicity:

68

•

In each of the four jurisdictions, the proportion of contacted potential
jurors showing up on the summoned date (yield) was generally lower if
those contacted were from a micro-neighborhood with a higher
proportion of African American residents.

•

In three of the four jurisdictions, yield was lower if those contacted were
from a neighborhood with a higher proportion of Latino residents.

•

In one jurisdiction, Philadelphia, yield was lower if those contacted were
from a neighborhood with a higher proportion of Asian American
residents.

•

These impacts of racial composition of the micro-neighborhood persisted
after controlling for other features.

Some more specific findings, by county, were as follows:

Philadelphia County
•

Latino population of a micro-neighborhood more dramatically affected
yield than did African American population.

•

The study linked integrated neighborhoods (30 to 70 percent African
American) with higher yields.

•

Lowest yields were seen in white neighborhoods beginning to integrate,
and neighborhoods all or almost all African American.

•

Yield was also lower in neighborhoods with a higher proportion of
residents in the 18–30 age bracket.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

Allegheny County
•

The geographic analysis suggested that the rate at which residents were
contacted was somewhat lower for low-income and more predominantly
African American micro-neighborhoods.

•

In general, differences in yield from micro-neighborhood to microneighborhood were very slight, making it extremely difficult to uncover
predictors of yield.

•

Age, stability, or economic status had no effect on yield.

•

Yield was higher in locations with a lower proportion of African
American residents.

Montgomery County
•

Yield was higher in locations with a less predominantly African American
population, although it should be noted that Montgomery County had
fewer than 20 micro-neighborhoods that were more than 50 percent
African American.

•

Micro-neighborhood stability and socioeconomic standing had no
significant effect on yield. But, lower yield was noted in microneighborhoods with higher portions of elderly or soon-to-be-elderly
residents.

Lehigh County
•

In general, yield was higher in Lehigh County in micro-neighborhoods
with lower proportions of African Americans and/or lower proportions
of Latinos. The researchers cautioned, however, that “The shape of each
of these racial impacts is not simple.”26

In general, the Phase II study demonstrated:
•

That neighborhood racial composition affected the likelihood that a
contacted potential juror would be qualified, not excused, and willing
and able to show up for jury service.

•

That there was underrepresentation by race in the middle stages of the
processing of potential jurors in Pennsylvania. The study showed the
effect to be large, particularly with regard to African Americans. Further,
the effect could not be explained away by other factors such as income.

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Specific contact rates varied by jurisdiction
The researchers in the Phase II study did not examine the adequacy of
contact lists, although they did calculate “contact rates” from the number
of contacted jurors per person aged 18 and older in each neighborhood.
This allowed rates from each neighborhood to be compared with the
average contact rate for the city.

70

The final report noted that there should be little systematic variation in the
contact rate. This was indeed the case in Philadelphia, suggesting the lists
used there were equally representative in different neighborhoods. In
Allegheny County, however, there was a suggestion of systematic variation.
There the contact rate in low-income, predominantly African American
neighborhoods was between 40 and 70 percent of the average contact rate
for the city. This suggested a variation by jurisdiction in the
representativeness of initial contact lists.

Conclusions
•

African Americans were underrepresented in juror yield in all sample
counties.
Juror yield was lower in neighborhoods with a higher proportion of
African American residents, after controlling for other features of
neighborhood fabric. This statistically significant effect appeared in all
four sampled jurisdictions, although it varied considerably. In some
jurisdictions, the yield dropped by 10 percent from all-white to
all-African American neighborhoods.

•

Latinos were underrepresented in juror yield in three of the sample
counties
In Philadelphia, Montgomery, and Lehigh counties, juror yield was
significantly lower in neighborhoods with a higher proportion of Latino
residents. The size of the impact varied, but was generally of comparable
size to the impact of African American and Asian American composition.

•

Asian Americans were underrepresented in juror yield in Philadelphia
County
In Philadelphia, yield was significantly lower in neighborhoods with a
higher proportion of Asian American residents. In neighborhoods in
which Asian Americans constitute 40 percent of the population, the yield
was about 10 percent lower than in neighborhoods with no Asian
American population.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

ALLEGHENY COUNTY STUDY
A 2001 study by John F. Karns, J.D., Ph.D., University of Pittsburgh,
Statistical Representativeness of a Sample of Persons Selected for Jury Duty
in Allegheny County Pennsylvania, May 12 through October 11, 2001,27
addressed whether there were substantial demographic differences between
the county population and the criminal court jury panel; and whether
any substantial differences were “just ‘the luck of the draw’ or…evidence
of the operation of some systematic, biasing process.” Karns used a
questionnaire to ask jury panel members their gender, age, and race, and
then, using standard Statistical Package for the Social Sciences (SPSS)
software, compared the profile with precise 2000 census figures for
Allegheny County residents over 18, the same age cohort that is called to
jury service.
The survey identified significant differences in race and age between the
general population and the jury panel.
•

Persons 18 to 24 years old were 10.95 percent of the jury-eligible
population, but only 0.75 percent of the jury panels. For full
representation, in other words, 15 times more people ages 18 to 24
should have been selected for jury panels. In other age categories, persons
45 to 54 years old represented 18.15 percent of the county population
but 31.9 percent of the jury sample; and persons 60 to 64 were 6.35
percent of the population but 11.47 percent of the jury panel.

•

African Americans were 12.41 percent of the county population, but only
4.57 percent of the jury sample, meaning they were underrepresented by
nearly 64 percent in the jury sample. (Only 15 persons in the jury sample
designated themselves as Latino, a number too small to allow meaningful
comparisons.)

When Karns cross-tabulated the jury panels by race, age, and gender, he
noted that there were few white women in the under-25 age categories, but
there were zero African American females under age 25 on the panels. In
the jury sample overall, African American women tended to be somewhat
older than white women. The same general patterns held true for men.
There were no African American men under age 25 on the jury panels, and
just 26.6 percent of African American men on panels were under age 45,
making their mean age 52.3 years, or about three years older than their
white male counterparts.

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Karns went on to analyze racial distribution on the jury panels,
demonstrating in a series of tables that:
•

The age group pattern in jury panels was “moderately representative” of
the county population, although the jury sample was unrepresentative of
the larger community in four age categories: 25 to 34; 45 to 54; 55 to 59;
and 60 to 64.

•

The racial pattern showed a significant overrepresentation of whites on
jury panels and a corresponding underrepresentation of African
Americans. Among Allegheny County residents ages 18 and older, the
ratio of whites to African Americans was about 6.75-to-1, while in the
jury sample the ratio was 18.8-to-1. In raw numbers, the five-month
survey found 4,657 whites on jury panels, along with 226 African
Americans and 65 others. The overall population included 836,000
whites and 124,000 African Americans.

72

NEWSPAPER INVESTIGATION OF ALLEGHENY
COUNTY JURIES
On July 21, 2002, the Pittsburgh Tribune-Review released the results of an
investigation it conducted over the previous 18 months of the jury
summoning system in Allegheny County.28 Using a computer mapping
program to locate the home addresses of the nearly 45,000 potential
criminal court jurors, the investigation revealed that the residents of
African American neighborhoods were half as likely to be called to jury
duty as residents of white neighborhoods. In neighborhoods that were at
least 98 percent white, according to the 2000 census, on average 53 of
every 1,000 adults were summoned in the study’s time period; whereas only
26 of every 1,000 adults in neighborhoods where African Americans are in
the majority received a jury summons. Furthermore, the investigation found
that of 1,031 prospective criminal jurors who reported for jury duty during
a 12-day period in the spring of 2002, only 42 were African American, or
4 percent. The paper reported that Allegheny County’s adult population is
11 percent African American.
The investigation noted several problems with the county jury selection
process, including the following:
•

The county jury commission does not buy change-of-address data from
the U.S. Postal Service, a service commonly used by direct mail companies
and some courts to improve accuracy and reduce postage costs;

RACIAL AND ETHNIC BIAS IN JURY SELECTION

•

Census data show that African Americans in Allegheny County are much
less likely than whites to own homes and, therefore, are more likely to
move more often. Last year, nearly 15,000 juror questionnaires were
returned by the post office for a wrong address. The jury commission
does not follow up on those returned questionnaires;

•

Juror compensation is low ($9 per day for the first three days of jury
service) and lower-wage workers, including many African Americans,
cannot afford to lose wages in order to perform jury duty.

As a result of this investigation and the efforts of others, the Legislature has
approved a resolution calling for a state research panel to conduct a study
to improve minority representation on juries and to examine juror
compensation.

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PUBLIC HEARING TESTIMONY
At six public hearings in Philadelphia, Pittsburgh, Harrisburg, State
College, Wilkes-Barre, and Erie, the Committee heard testimony from a
variety of judges, attorneys, and concerned citizens who addressed the
absence of minorities on juries across the Commonwealth. The speakers
brought several key concerns to the Committee’s attention.

74

SMALL NUMBERS OF AFRICAN AMERICANS AND
LATINOS ON JURIES

“Thus, in all of the cases which I have tried on behalf of
African American plaintiffs in the past five years, a
grand total of one African American was involved in
the deliberations that determined the outcome of the
case. Indeed, in most of the cases, the only African
American in the courtroom was my client.”
—Attorney Timothy P. O’Brien

Timothy P. O’Brien, a plaintiff’s attorney with a civil practice in Pittsburgh,
testified that he had represented more than 20 African American plaintiffs
in civil jury trials during the past five years in both state and federal courts;
the cases included personal injury claims, fair housing, employment
discrimination, and police abuse litigation. In most of the cases, O’Brien
said, the jury panel contained no African Americans; in all the cases
combined, a total of two African Americans were selected as jurors,
including a woman who was seated on a Batson challenge in a fair housing
case but was later excused to care for her children. “Thus, in all of the
cases which I have tried on behalf of African American plaintiffs in the past
five years,” O’Brien said, “a grand total of one African American was
involved in the deliberations that determined the outcome of the case.
Indeed, in most of the cases, the only African American in the courtroom
was my client.”29
O’Brien acknowledged in his testimony that the de facto exclusion of
African Americans from juries has never been held unconstitutional.
“Nevertheless, whether African Americans are excluded from juries
intentionally, negligently, inadvertently, or for some other reason, the net
effect is the same.”30

RACIAL AND ETHNIC BIAS IN JURY SELECTION

Honorable Mark Ciavarella, Jr., testified at the Wilkes-Barre hearing that
he had seen “maybe six or seven black individuals on juries” during his five
years on the Luzerne County Court of Common Pleas.31 Given the low
number of African Americans in the jury pool and on juries, Judge
Ciavarella said he must “always stress how important it is that we do not
make decisions based on the color of somebody’s skin. And I have to tell
you something, my impression and experience has been that most of the
jurors in Luzerne County, if not all, really go out of their way to make sure
that doesn’t become an issue…I had a whole host of criminal trials with a
lot of not-guilty verdicts against black individuals from all-white juries.”32

JURY SOURCE LISTS
Each county court system in Pennsylvania currently makes its own
decisions about the source lists that it uses to construct the jury pool;
the Commonwealth has no statutory mandate or restriction. In public
hearings, the Committee heard testimony by court administrators and jury
commissioners who described the operations of the lists.
Gladys Scott, court administrator of Erie County, said: “My job is not to
select jurors. My job is to qualify the jurors, to bring them in for jury
selection, and so I need a base.”33 The county’s base is built on a voter
registration list and a licensed driver’s list. In response to questions by the
Committee, Scott said she had no information about the racial breakdown
of the pool because race was not listed on driver’s licenses and was optional
on voter registration forms. “Race is an optional question on our juror
qualification forms as well. We’re finding that many persons leave the
question blank when they return their qualification forms, and many write
on it ‘none of your business.’”34 The master list is updated annually with
the names of registered voters, Scott said. Her office requested Social
Security and welfare lists in an effort to expand the pool, but those requests
were denied.35
James Minella, court administrator in Lackawanna County, testified at the
Wilkes-Barre hearing that “Up until 1980, all counties were using the voters’
list for their jury selection.” After 1980, they decided, “This is probably the
worst source for jury selection due to the fact that, particularly, young people
do not register to vote. And it also shows that minority people are not
registered to vote.”36 With that in mind, he said, Lackawanna County
became one of the first counties in the Commonwealth to switch over to
driver’s license lists as its source of names for the jury pool.

75

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76

J. Robert Chuk, court administrator in York County and former court
administrator in Delaware County, said York County supplements its list
with names from the county’s per capita tax rolls, and has added the names
of low-income people by using a list from the York Area Earned Income
Tax Bureau. Chuk also said race is not tracked in jury questionnaires.
“My own theory is that…we might get into worse or additional problems,
were we to have some vehicle for indicating what particular group a juror
belonged to. We think that might be more biased—that we could stack a
jury one way or another. And we certainly do not want to leave that
impression. We think that might be a violation of the Constitution and
we don’t want to do it.”37
Allan Kirschman, jury commissioner for Allegheny County, also stressed
that his office is concerned only with maintaining the jury pool, which is
based on voter’s registration lists, driver’s license lists, and telephone
directory listings. Asked at a public hearing to estimate how many minority
jurors there were per 100 white jurors, Kirschman said, “I don’t know
because we don’t have that contact with them.”38 He testified that the
office was “not allowed” to ask questions about race or gender on the jury
questionnaire.39 He also said his office looked into using lists of public
utility customers, but abandoned the idea because of confidentiality
concerns. Asked about the possibility of maintaining a weighted list of
minorities within the jury pool, Kirschman said, “I think that everybody
thinks this will not be legal to do that, so we have not done that so far.”40

INADEQUACY OF ATTEMPTED REMEDIES TO INCREASE
JURY DIVERSITY
Recognizing that current policies were not yielding representative numbers
of minority jurors, several counties launched special programs to
supplement their jury source lists. In several cases the efforts proved futile,
with only a handful of citizens volunteering.
In Allegheny County, Kirschman described the Jury Diversification Project
that his office began in 1997 after hearing suggestions that they might
be missing a large number of citizens. He said the office enlisted the aid of
nine community organizations, 79 libraries and the local newspapers,
but in three years the effort yielded only 70 inquiries, mostly from people
already in the jury pool. In the end, five new citizens were added to the
jury pool.41

RACIAL AND ETHNIC BIAS IN JURY SELECTION

In Lackawanna County, Minella described the complications that arose
about a decade ago when the court attempted to recruit additional African
Americans for the jury pool, using posters, TV spots, and other methods.
“The act states that the president judge has the right—that if you do not
own a driver’s license in the Commonwealth—he could sign an order and
you could recruit people for jury duty if they do not have a driver’s license.
If you have a driver’s license, you can’t sign up because you’re already in
the master list to be selected.” Over a period of four or five months,
Minella testified, only four additional names of African Americans were
added to the list.42
Minella also described the county’s efforts to reduce the number of
potential jurors who had been excused after checking the “undue hardship”
box on the jury questionnaire. “They excused lawyers, doctors, dentists,
school teachers, registered nurses, pharmacists, undertakers, so therefore
we have the guy in construction, basically, the guy working in the factory,
coming in for jury duty.”43 The president judge sent letters to the medical
society and bar association, urging members to serve on juries. “And, since
1980 until the present, probably our best jurors are the doctors, lawyers,
et cetera.”44
In Erie County, Scott reported her experience with an outreach program to
Erie’s minority churches that was in place between 1991 and 1997, when it
quietly expired. “For any program to be successful, there must be interest
and participation from those individuals who would directly benefit from
it. The underrepresentation of minorities on the master list is an ongoing
problem. That is why we implemented the community outreach. I do not
know why the outreach ended. I do not know what else I, or the court, can
do,” she said.45

LIMITED VOIR DIRE AND THE ROLE OF JUDGES
Honorable Stephanie Domitrovich, of the Erie County Court of Common
Pleas, wrote in a law review article that “Without a sufficient source list,
random selection is a hurdle to obtaining a fully representative jury. Even if
a list is perfectly inclusive, it remains statistically impossible to prove
that those jurors represent all of the community’s attitudes and experiences.
Voter registration lists are neither inclusive nor representative.”46

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“Judges are the only ones that can make a difference in
jury selection, making sure that we have more
representative juries.”
—Honorable Stephanie Domitrovich

78

Testifying in Erie, Judge Domitrovich called for expanding voir dire as a
means of ensuring fuller minority participation in juries. She said: “The
community perceives the jury selection process as fair when its members
can participate fully in voir dire. Whether full participation is possible,
however, is largely based on the foundation of voir dire, which is composed
of basically our jury source lists and random selection.”47
After pointing out that Batson challenges do not apply if there are no
minorities to be challenged on voir dire,48 she also addressed the “ broad
window” that Batson challenges can go through. “We accept a wide array
of reasons to eliminate someone, because that’s the case law.”49
In her testimony, Judge Domitrovich also called for rethinking courtroom
policies. “When a prosecutor or defense attorney will try to strike someone
and say, ‘Well, this is a non-gender or non-racial exclusionary statement,’
I’ve been known to turn them down and say, ‘I’m not going to accept that,
because that is racial, that is culturally ethnic, and I won’t accept that.’”50
White jurors, she said, frequently ask why minorities are not in the jury
pool, recognizing that the situation is not fair to the defendant or to the
jurors standing as judges of the facts. In that light, she said, “Judges are the
only ones that can make a difference in jury selection, making sure that we
have more representative juries.”51

WIDESPREAD MISUSE OF PEREMPTORY CHALLENGES
David Baldus, a University of Iowa Law School professor, testified at the
Philadelphia public hearing52 about empirical research that he and
George Woodward, a University of Iowa statistician, conducted on capital
sentencing. Together, in the past five years they have studied capital
sentencing systems in Georgia, New Jersey, and Colorado, as well as
performing a study based on all 707 death-eligible cases processed in
Philadelphia between 1983 and 1994. “We have focused on two decision
points,” Baldus explained in his testimony. “First are decisions of the
prosecutors and jurors to charge, and sentence to life or death, offenders

RACIAL AND ETHNIC BIAS IN JURY SELECTION

accused of capital crimes. Our second focus is the use of peremptory
challenges in the selection of juries in capital cases.”53
In the Philadelphia study, Baldus and Woodward found, inter alia:
•

In a study of jury selection for 317 capital cases between 1981 and 1997
in Philadelphia, prosecutors struck 51 percent of African American venire
members and 26 percent of non-African American venire members,
while defense counsel struck 54 percent of the non-African American
venire members and 26 percent of the African American venire members.
“What we learned in this study is that defense counsel [and prosecutors]
have a mirrored picture of who constitutes good and bad jurors under
the circumstances.”54

•

The 1986 Batson case, in which the U.S. Supreme Court prohibited the
use of gender and race in the selection of jurors through the use of
peremptory challenges, had no effect on strike rates. They were the same
before and after the Batson decision.55

•

The “principal targets” of peremptory challenges by prosecutors were
young African American women; middle-aged and young African
American men; and middle-aged women.56 Baldus testified that this was
borne out in a training tape on peremptory challenges that was prepared
by then-prosecutor Jack McMahon in 1986 or 1987 and has been widely
viewed in recent years since its release to the press. “The substance of Mr.
McMahon’s advice was to eliminate black members, especially young
men and women, and to seek a jury that was predominantly white,
middle-class, conservative and conviction-prone,” Baldus said.57

•

Race figured heavily in an explanation of who receives a death sentence.
“Specifically, the defendant’s race as black had, on average, the same level
of aggravating effect on jury sentencing decisions as did the presence of
two statutory aggravating circumstances.”58

In the selection of capital juries, Philadelphia
prosecutors and defense counsel systematically
excluded venire members through the use
of peremptory challenges on the basis of their race
and gender despite federal law prohibiting
such discrimination.
—Professor David Baldus

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80

In sum, Baldus said, the research documented four findings relevant to jury
selection in Philadelphia. Baldus found: 1) In Philadelphia capital trials,
African American defendants were at a higher risk of receiving death
sentences than were similarly situated non-African American defendants;
2) In the selection of capital juries, Philadelphia prosecutors and defense
counsel systematically excluded venire members through the use of
peremptory challenges on the basis of their race and gender despite federal
law prohibiting such discrimination; 3) This discrimination skewed jury
sentencing decisions in the direction of increasing the frequency of death
sentencing and, in addition, it enhanced the level of race discrimination
against African American defendants; and 4) This skewing effect
was principally the product of prosecutorial strike rates against African
American venire members that were not offset or counteracted by
high defense counsel strike rates against non-African American venire
members.59
Baldus proceeded in his testimony to recommend that peremptory
challenges be abolished or at least restricted to a small number in
Pennsylvania, “or certainly at least in this jurisdiction [Philadelphia].”60
He and Woodward generated hypothetical estimates of the level of
discrimination, given different strike rates; they concluded that 10 strikes
for the defendant and five for the prosecution would “greatly minimize”
the effects of the discrimination, which become most acute when
prosecutors are striking at a rate “well above 50 percent.”61
The Committee heard other testimony about the widespread abuse of
peremptory challenges. Felipe Restrepo, of the Hispanic Bar Association,
testifying in Harrisburg, spoke about Latinos being struck from juries
under a Hernandez v. New York challenge, which ostensibly invokes
translation difficulties as justification for a strike.62 Robert Foreman, a
veteran Pittsburgh criminal defense attorney, testified: “It has been my
experience that potential black jurors are more frequently excused by
peremptory challenge than potential white jurors. It has been my
experience that potential black jurors are more frequently excluded by
challenges of the prosecution than by the defense.”63
Baldus’ findings were challenged by Gary Tennis, chief of litigation for the
Philadelphia District Attorney, who said Baldus’ studies in Georgia and
New Jersey had been “discredited.”64 Tennis also disputed the meaning of
the McMahon tape within the district attorney’s office. “That tape was

RACIAL AND ETHNIC BIAS IN JURY SELECTION

covered with cobwebs. Nobody ever looked at that tape. That was never
the practice which reflected the formal policies of the Philadelphia District
Attorney’s office.”65 In addition, Tennis said that although the issue of
attorneys excluding jurors because of race has been raised “hundreds and
hundreds of times,” the district attorney’s office found only two instances
in the past decade “where the matters were reversed because of Batson.”66
Finally, Tennis said his office did not think that keeping statistics on the
race or ethnicity of defendants or victims was appropriate.67
Charles Cunningham, an attorney with the Philadelphia Defender’s
Association, said, “If anybody tells you the defense lawyers and prosecutors
are not selecting jurors on the basis of race, then you’d better question
them very seriously. To disprove that notion, walk into any Philadelphia
courtroom. You will note a pattern and will see that the McMahon tape is
alive and well in the district attorney’s office.”68
In that light, Cunningham called for an expansion of voir dire rather than
an elimination of peremptory challenges:
“David Baldus has suggested that peremptory challenges might be gotten
rid of altogether. I think that is a drastic solution. I think that one possible
solution is the fact that we need…to expand voir dire, because what has
taken place in Philadelphia is there is no voir dire. There are questionnaires,
there are answers on papers. Lawyers and prosecutors do not have an
opportunity to really question the jurors. And why? We are moving fast.
We have to get this case done so that we can move on to the next case.
“Judges are under pressure to get cases disposed of so that they can have
high statistics, and when you start putting such an emphasis on speed,
something has to give. And what is that that’s giving? It may be justice.”
Cunningham continued, “And you can do justice if you have time, but we
need to give lawyers the opportunity to expand their questions to find out
if this person can be a fair juror. You can’t tell by looking at a piece of
paper. You can’t tell when they answer all of the questions in the negative
because you get no feel for that juror and, therefore, what is left? You sit
in the courtroom looking at people, knowing nothing about them. And that
forces people to revert to the stereotypes. You’ve got to give the lawyers
and the prosecutors some leeway.

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“Will it eliminate racism altogether? No, it won’t. And if you don’t think
that racism exists in the criminal justice system, then you will have to
believe that the criminal justice system exists beyond the rest of this world
and certainly beyond this country.”69

82

“The Batson challenge occurs at side bar, away from the
public, the jury panel, the litigants, and the challenged
juror. Often there is no stenographic record kept of the
challenge…Thus, we in the justice system do not know
how many times a particular attorney is subject to a
Batson challenge…”
—Attorney Clifford Boardman
In his testimony before the Committee, Clifford Boardman, an attorney
from Philadelphia who specializes in civil rights litigation, suggested
another method of addressing the misuse of peremptory challenges. He
recommended that the Court require that a database be created to record
all information involved in a Batson challenge in order to take “racial
manipulation of juries out of the dark.”70 He explained:
“The Batson challenge occurs at side bar, away from the public,
the jury panel, the litigants, and the challenged juror. Often
there is no stenographic record kept of the challenge, and,
if there is, it is not transcribed unless the Batson ruling is later
appealed, which is exceedingly rare. In fact, almost always
the only people who know the challenge ever existed are the
litigants’ attorneys and the judges. Thus, we in the justice
system do not know how many times a particular attorney is
subject to a Batson challenge, how many times a trial judge
agrees with a challenge. We do not know the racial composition
of the jury pool or of the impaneled jury as these records are
either not created or not retained generally.”71

RACIAL AND ETHNIC BIAS IN JURY SELECTION

OTHER TASK FORCE FINDINGS
STATE TASK FORCES
California

Comments made in public hearings conducted by the California Judicial
Council Advisory Committee on Racial and Ethnic Bias in the Courts
suggested that juries in California were consistently unrepresentative and
that this was detrimental to persons of color. In its final report, published in
1997, the committee quoted several speakers who offered stories of
fundamentally unfair juries. One speaker reported that when the trial of a
seriously injured plaintiff was transferred from downtown Los Angeles to
Glendale, the judge urged the plaintiff to settle because “juries here are not
going to be sympathetic to your [African American] client.”72 Another
speaker who served as an alternate juror reported that at least one member
of a hung jury “just could not see a white [defendant] going to jail because
he had done anything to an African American [victim].”73 An Oakland
resident put it bluntly, stating:
“There should be some way to guarantee that a black is in a jury
when another—when black people are involved…I’d rather
have that one black person on a jury trying to make a decision
about my life, than I would trusting my life to the decision of
people that don’t have no—that are not black, plain and simple
as that.”74
The committee’s report noted that juries can be non-representative for a
number of reasons. One reason is systemic: minorities are often excused for
hardship because of economic circumstances and are more frequently
excused for childcare or other needs than are middle-class whites, making
them less likely to serve. 75 According to the committee’s report, there are
numerous other reasons that California juries are non-representative. Voter
lists and Department of Motor Vehicles lists are often used for juror
selection, yet some members of ethnic minority groups may not appear on
either list. Furthermore, because different ethnic groups tend to be
concentrated in certain areas, performing a simple, random selection may
miss such individuals and is not as effective as a “more sophisticated cluster
sampling.” The committee also noted that it is much easier to lose track of
individuals who tend to rent rather than own their homes, because they
may move more often than middle-class residents, rendering their addresses

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obsolete. Insufficient knowledge of English and lack of U.S. citizenship are
grounds for ineligibility for juror service in California, and exclude an
estimated 37.5 percent of the Latino population there.76
Oregon

84

The Report of the Oregon Supreme Court Task Force on Racial/Ethnic
Issues in the Judicial System was completed in 1994. It addressed three
primary issues with respect to minority participation on juries:
1) underrepresentation of minorities on jury pools, 2) selection of the jury
panel and perceived bias in that process, and 3) concerns about racial bias
during jury deliberations. In incorporating information obtained from a
1993 study conducted by the Multnomah Bar Association into its report,
the task force noted its belief that similar results would have been obtained
if the same study had been conducted in other parts of the state. The
Multnomah Bar Association Report concluded that the master list from
which jurors were subpoenaed “did not include certain groups in
proportion to their representation in the county: those under 35 and over
75, never married people, renters, and black and Asian citizens.”77
In Oregon, master lists are prepared by the state court administrator by
merging lists of registered voters and persons with driver’s licenses or
Department of Motor Vehicle identification cards. A county notifies the
state court administrator that it needs a certain number of jurors, and the
administrator then creates a randomly selected list of jurors from its
combined list. Courts draw their own lists of potential jurors from the
master lists and send those potential jurors subpoenas through the mail.
The task force report indicates that the most significant problem
with this system is that “a large percentage of those who are sent the
subpoenas…receive a deferral or an excuse from serving.”78 As noted
frequently in other state task force reports, these excuses are based, among
other things, “on medical reasons, financial hardship, the need to care for
small children…or business hardship,”79 all reasons that affect minorities
in significantly greater numbers than non-minorities.
The Oregon task force also gathered information about perceptions of
possible racial bias during jury deliberations. Two-thirds of survey
respondents voiced the opinion that “peremptory challenges are used to
eliminate minorities from the jury based solely on the juror’s race or
ethnicity.”80 Further, more than 40 percent of all respondents (including
55 percent of minority respondents) stated a belief that a minority litigant

RACIAL AND ETHNIC BIAS IN JURY SELECTION

was less likely to win a personal injury lawsuit than a non-minority litigant,
and almost 45 percent of all respondents (including almost 60 percent of
minority respondents) agreed that a minority litigant who did win would
likely receive less compensation from a jury than a non-minority litigant.81
OHIO

In preparing the jury chapter of its 1999 final report, the Ohio Commission
on Racial Fairness focused on “citizens’ attitudes toward jury duty and
their level of satisfaction with various facets of the administration of justice
as jurors.” These issues were addressed through juror surveys and public
hearing testimony about racial bias on Ohio juries. The commission noted
that: “The most cogent data on racial bias concerns came from commission
public hearings.”82 Four major concerns arose during the public hearing
testimony: First, there was concern that all-white juries were trying
minority defendants, especially African Americans; second, it was
frequently reported that jury pools that depended solely on voter
registration lists underrepresented poor people; third, it was suggested that
non-whites were less trustful of the judicial system and therefore less likely
to serve on a jury if summoned; and finally, public hearing testimony
indicated that minorities were routinely eliminated during voir dire solely
on account of their race, and were therefore less likely to be selected for
jury duty even if summoned.83
The commission also obtained data through its juror surveys about jurors’
perceptions of how they are treated in courtrooms. Overall, the survey data
showed that 70.1 percent of the surveyed jurors were white; almost 24.7
were African American; about 2.8 percent were Latino; and 2.4 percent
were “others,” including American Indian and Asian.84 The commission
found that whites were “the most satisfied” with their treatment and with
other jury duty issues, while Latinos were the “least satisfied” and
African Americans fell “somewhere in the middle.”85 Although the number
of Latinos in the survey sample was not statistically significant, the
commission was careful to note that it was socially significant, especially in
light of the growth of the Latino population in Ohio over the past two
decades and the anticipation that it would continue to grow in both size
and influence.86

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NEW YORK

86

The report of the New York State Judicial Commission on Minorities,
published in 1991, stated that, “according to most sources, minorities are
underrepresented on juries in certain New York State courts.”87 The
commission found that underrepresentation of minorities on juries led to
perceptions that people of color are not treated equally by the courts,
and it further noted that such limited minority underrepresentation can,
in fact, disadvantage minority litigants. Although the Office of Court
Administration does not maintain data on the number of minorities serving
in the New York State Court system, the commission collected data on this
topic by surveying judges and litigators.
The judges in the survey expressed a variety of personal views regarding
the reasons for the “substantial underrepresentation of minorities on
juries in New York State.” One African American judge suggested that,
“sequestration of jurors may influence minorities because of greater family
responsibilities” and a white judge stated that, “frequently, minority jurors
asked to be excused for hardship reasons either financial or personal, i.e.,
young children. This frequently results in a minority defendant being tried
by a jury with no minority members.”88 Litigators in the survey commented
on the small proportion of minorities in the jury pool, and some explained
that, “The likelihood of getting an all-white jury must always be taken
into consideration by minority litigants in deciding whether to take a case
to trial, on the assumption that they will not get a fair trial if the jury is
all white.”89
The commission also examined the jury selection process in order to
determine “at what points potential minority jurors are lost” by examining
how juror source lists are compiled, how these lists are used by local
commissioners and how peremptory challenges are used. The commission
found the New York Office of Court Administration (OCA) compiling
master juror lists from three lists—operators of motor vehicles, registered
voters, and individuals to whom state income tax forms are mailed.90 While
the use of these lists has been upheld by the courts, the commission noted
that they may be “insufficient for the purposes of ensuring desirable
levels of minority representation.”91 This may be the case, in part, because
the master list is “based on sources which may not include the
economically disadvantaged, and thus the OCA list may exclude a
disproportionate number of minorities.”92
According to the commission, the overall response rate of the general
public to jury notices is another point at which potential minority jurors
drop out of the system. The report noted that there was a very low

RACIAL AND ETHNIC BIAS IN JURY SELECTION

overall response rate to the notice to appear, and that differences in the
response rate of minorities and non-minorities to jury notices may result
in an underrepresentation of minorities in juror pools.”93
The third point at which the commission observed minorities disappearing
from the jury pool was during the voir dire process and through the use
of race-based peremptory challenges. Litigators who were questioned by
the commission perceived that peremptory challenges in criminal cases were
still used to exclude individuals from juries on the basis of their race.94
Most litigators, according to the report, also expressed “marked
dissatisfaction with the voir dire process as a way of ensuring a bias-free
jury.”95 For example, an African American litigator in New York City told
the commission, “I have had white judges ask very insensitive questions
of potential minority jurors to discourage them from serving,” and a white
litigator voiced the following concerns:
“Further, for the few defendants with the courage to go to trial,
the system’s mania for speed and ‘efficiency’ often results in
woefully inadequate jury selection, based on a false belief that
the process is inordinately time consuming. As a result,
attorneys have little to rely on in selecting jurors and thus often
fall back on their own racial biases and prejudices in exercising
peremptory challenges.”96
In sum, the commission noted: “Many litigators believe that questions
about racial fairness are answered dishonestly.”97 One explanation was that
judges, “who are clear authority figures in the court,” commonly and
actively participate in voir dire and that “because of social pressure, people
may be less likely to respond honestly to questions posed by someone in
authority in a group setting.”98
NEW JERSEY

A key finding of the New Jersey Supreme Court Task Force on Minority
Concerns, which published its final report in 1992, was that minorities are
underrepresented on New Jersey juries, resulting in jury decisions that
discriminate against minorities. At the time of its study, the task force was
unable to find or generate statistics to document “actual underrepresentation
of minorities on juries in New Jersey, or the degree and rates of such
underrepresentation because racial and ethnic information about jurors
was not collected.”99 Thus, in reaching its conclusion, the task force relied
heavily on scholarly literature, reports of other jurisdictions, and public
hearing testimony. The task force also noted that initial allegations of
underrepresentation were raised in at least 10 New Jersey counties, although

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at the time the report was published no court had yet “held that
constitutionally significant under-representation” was found.100 Still, in State
v. Ramseur,101 a case that examined minority representation on juries in Essex
County, the New Jersey Supreme Court found that certain improvements
to increase the representativeness of juries were still “far from optimal,”
concluding that “greater representativeness on the
jury panels is obviously desirable.”102

88

The task force found that several statutory requirements presented significant
impediments to minorities serving on juries. The first was the New Jersey
statutory requirement that a juror had to be a citizen of the state. Census
and other data showed that this citizenship requirement affected persons of
color disproportionately, as 3 percent of the African American population,
23 percent of Latinos and approximately 50 percent of Asian/Pacific
Islanders in 1980 were non-citizens. New Jersey statutes also stipulated that
jurors may not have a criminal conviction. Accordingly, indirect evidence
gathered by the task force suggested African Americans in particular, and
Latinos to a lesser degree, were more likely than whites to be ineligible to
serve on juries.103 Many persons of color were also disqualified from jury
service in New Jersey because of the requirement that jurors “shall be able to
read, write, and understand the English language.”104 The task force found
that this requirement had the most dramatic effect on Latinos, and a less
dramatic, though “still significant, impact on Asian-Pacific Islanders.”105 A
final legal obstacle presented by New Jersey statutes appeared in the form of
an exemption for “any person who has the actual physical care and custody
of a minor child.” According to the task force, single mothers were the class
of mothers with minor children most likely to be affected by the exemption,
and at the time almost one in three African American mothers was a single
parent and more than one in five Latino mothers was a single mother.”106
The task force also noted several non-statutory reasons that minorities were
underrepresented on New Jersey juries. A significant and surprising finding
was that “some African Americans and Latinos do not register to vote
because they do not want to be called as jurors.”107 In addition to reflecting
a desire to avoid jury duty, the task force found that this reluctance also
reflected upon the hardship that jury service could present for many
minorities. An individual who offered written testimony to the task force
noted:

RACIAL AND ETHNIC BIAS IN JURY SELECTION

“For a minority or any other person whose wages are not
reimbursed by their employer, and for a minority businessperson,
the current fees paid for juror service amount to a severe
economic hardship. Since many jurors are reimbursed by their
employers, it also places an unfair burden on minority and other
small business persons who have to subsidize the jury system
while they also lose the services of their employees.”108
Fear of, or lack of confidence in, the judiciary can also restrict minority
access to juries. According to the Report on Minority Concerns prepared in
New Jersey in 1984, there was “an inherent fear of the judicial system,
which keeps many minorities from willingly responding to a call to jury
service.” Further, cultural factors can also affect minority participation in
juries, especially with respect to Latinos, who may come from totalitarian
countries and may bring with them a profound fear of “all things
governmental.”109
Taken collectively, the task force concluded that the factors discussed above
can mean that as much as 50 percent of the population of African
Americans, Latinos, and Asian/Pacific Islanders are unavailable for jury
service on any given day “because of a combination of legal,
socioeconomic, political, and cultural factors.”110
As a result, the task force found that some of New Jersey’s minorities
believed that jury decisions in both criminal and civil cases were less
favorable for persons of color. In civil matters, this meant that juries tended
“to make smaller awards in personal injury cases where the plaintiff is a
minority” and also reflected on the “imputation by jurors on pain
undergone by minorities who have suffered injuries compared to similarly
situated whites.”111 With respect to criminal cases, the Committee on
Minority Concerns concluded that the lack of minorities on juries leaves
minority defendants “prey to the prejudices and fears of that
unrepresentative jury.”112 This position was powerfully summarized during
the task force’s public hearings by Augustinho Monterio, president of
the Greater Red Bank Chapter of the NAACP, who stated:
“If there’s nothing that the courts can do to get the number of
African Americans on juries, then all the rest of it doesn’t
amount to a hill of beans…There are very few people, other
than African Americans, who understand the African American
psyche. Nobody else has ever had or ever lived or perhaps could
ever have endured what African Americans have endured in this
country.”113

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FEDERAL TASK FORCES
D.C. CIRCUIT

Unlike the jury pool for most federal courts, the jury pool for the District of
Columbia Circuit is predominantly African American.114 Yet the Report
of the Gender, Race, and Ethnic Bias Project in the D.C. Circuit still noted
evidence of racial and ethnic bias in the selection of jurors.

90

The committee conducted a survey exploring possible discrimination
in the selection of non-African American minority jurors, and the impact of
race and ethnicity in the selection of all jurors. When asked if there was
discrimination in the selection of jurors in the D.C. federal courts,
67 percent of whites said that there was no discrimination against African
Americans in the selection of jurors, while only 31 percent of African
American respondents felt that was the case.115 The report further noted
that Latino attorneys were more likely to identify discrimination against
non-African American minorities, and that “essentially similar percentages
of African Americans and whites perceived discrimination against whites
in the selection of jurors.”116
With respect to the impact of race and ethnicity in the selection of jurors,
nine of the 10 judges interviewed for the report stated that race played a
role in the selection process.117 They acknowledged that this could create
a situation in which minorities felt unwelcome in the justice system. In
interviews conducted by the committee, one judge commented, “In reading
the records and cases, I sense a perception of how jurors perceive
prosecutors and the system…I think that a substantial number of jurors
perceive the system as ‘white.’”118
The committee found that Latinos were not well-represented in the D.C.
Circuit juries. During interviews, several judges “remarked on the low
numbers of Hispanics represented in the jury venire,” and during the public
hearing and in attorney focus groups the committee “heard concerns that
Hispanics were serving on federal juries in very small numbers.”119 The
committee could not accurately determine, however, whether the sources
used for the jury pool—the D.C. Board of Elections registered voters file
and the D.C. Department of Motor Vehicles file of individuals 18 years and
older who have a driver’s license, learner’s permit, or valid identification
card issued by the DMV—represented “a fair ‘cross-section’ of the District
of Columbia community, including Hispanics.”120

RACIAL AND ETHNIC BIAS IN JURY SELECTION

In order to identify the number of Latinos called for jury duty and the
possible basis, if any, for their disqualification, the committee reviewed all
of the jury questionnaires for individuals summoned from September 1992
through March 1993.121 The committee listed the following three reasons
for its inability to determine accurately the Latino presence in the jury pool:
First, it was unclear whether all respondents to the questionnaire
consistently recorded their Latino origin; second, fewer than 50 percent of
all people who received jury summonses responded, and there was no way
to determine how many Latinos were included in that number; and finally,
additional persons who returned questionnaires were either “exempted,
excused or disqualified from jury service.”122 The committee further noted
that “substantially more Latinos—58 of 92—were disqualified for lack of
U.S. citizenship than for any other reason,” and “lack of D.C. residency
disqualified an additional eight people and limited English ability excluded
another five people.”123 In all, nearly half of the 122 Latinos responding
to juror summonses were disqualified on the basis of citizenship, and
almost 75 percent of Latinos responding to jury questionnaires were not
qualified or were excused.124
THIRD CIRCUIT

The Third Circuit Task Force on Equal Treatment in the Courts created a
Committee on Jury Issues to study two general areas: 1) treatment of jurors
on the basis of race and ethnicity, and 2) the racial and ethnic composition
of the jury pool and juries in each district or jury division compared to the
composition of the population in these areas.125 As the basis for its 1997
report, the task force collected responses to surveys and questionnaires,
obtained public hearing testimony, and analyzed relevant literature in order
to obtain a better understanding of jury issues related to racial and ethnic
bias. Generally speaking, jurors, judges, court employees, and attorneys all
indicated that jurors appeared to be treated fairly in the Third Circuit with
respect to their race and ethnicity. When jurors did identify what they
perceived to be incidents of racial or ethnic bias, they most often indicated
this bias had been exhibited by another juror.126 For example, some of
the responding jurors indicated that a fellow juror had exhibited offensive
conduct, and had subsequently been excused by the trial judge prior to
deliberations.127
Public hearings were one of the methods used by the task force to
investigate the perception that minorities are underrepresented on jury
pools in the Third Circuit. According to the final report: “Many speakers

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at the public hearings throughout the Third Circuit expressed their
impressions that racial and ethnic minorities were under-represented in the
jury pool.”128 This was widely perceived to be a result of the fact that
minorities were underrepresented on voter registration lists. For example:

92

“In the District of Delaware, the Middle District of Pennsylvania,
and the Western District of Pennsylvania, the jury pool is drawn
from lists of registered voters. In these districts and generally in
the jury divisions within the districts, racial and ethnic
minorities, particularly African Americans and Hispanics, are
not represented in numbers as great as their percentage of the
general population.”129
The discriminatory use of peremptory challenges was cited as another
possible reason for minority underrepresentation on juries. While “only a
small percentage of judges in the Third Circuit believe that racial and ethnic
minorities are more likely than other jurors to be excused on peremptory
challenges,”130 a speaker from the Eastern District of Pennsylvania
suggested that “the prohibition on race-based peremptory challenges is very
difficult to enforce because it is extremely difficult to assess an attorney’s
reasons for challenging a prospective juror.”131 Two speakers from the
Middle District of Pennsylvania also shared this concern, with one speaker
noting that this difficulty was multiplied when there are few minorities
on the panel, because there was no discernible pattern of race-based
challenges.132
The task force also heard from more than a dozen attorneys who, in their
responses to questionnaires, noted the lack of minority jurors as well as the
effect their absence could have on the outcome of cases. One attorney
wrote:
“There are so few people of color selected through the present
jury system that most attorneys who themselves are minority or
who represent minorities are deeply concerned about fairness in
decision making in the federal court and often [if possible] seek
to use the state courts.”133
Attorneys and judges alike noted that the racial and ethnic composition of
juries influenced the valuation of cases for settlement purposes.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

SECOND CIRCUIT

According to the Report of the Second Circuit Task Force on Gender,
Racial and Ethnic Fairness in the Courts, which was published in 1997, the
federal courts in recent years have grown “considerably more concerned
with—and less tolerant of—jury selection that is influenced by racial or
gender stereotypes.”134 The task force was particularly concerned with two
primary aspects of the jury process: Fairness in the methods used in
forming the jury pool, and the selection of actual jurors. Racially skewed
juries in the Eastern District of New York were the subject of considerable
litigation, and the District of Connecticut also had difficulties creating a
racially representative jury pool, as described in United States v.
Jackman.135 In Jackman, the Second Circuit reversed a conviction in a
criminal case that was decided by a jury selected from an unrepresentative
pool.136
Although several sources of data were examined in order to prepare the
task force report, some of the data were inadequate, either because the data
itself were incomplete or because no information was available about the
racial and ethnic composition of jury panels in certain areas of the Second
Circuit. One of the key sources of information for the task force was a
juror survey completed by 488 of the 940 persons who served as jurors
during a six-week period in the spring of 1996. Up to 9 percent of the
respondents felt that they had been selected because of their race. Overall,
7.6 percent of the respondents felt that race had played some role in their
selection. Women and minorities were more likely than white men to
attribute their selection to race or gender.137 Most jurors responded
positively to inquiries about how they were treated and how they perceived
others were treated. Among the respondents, 97.6 percent reported that
no one had treated them inappropriately because of their race, ethnicity, or
gender and 97.9 percent of respondents “reported no untoward incidents
involving race or ethnicity.”138

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BEST PRACTICES
San Joaquin County, California

The San Joaquin County Superior Court in Stockton, CA, has instituted
a range of measures geared toward improving both the rate of response to
jury summonses and the experiences of citizens once they enter the
jury pool.

94

“It would be great if everyone could have the experience of sitting on a
trial,” wrote Superior Court Judge William J. Murray Jr. and Deputy Jury
Commissioner Annette Kirby in the first of a three-part series published in
the Stockton Record in 2000. “Unfortunately, many are called, but few are
actually chosen for jury service. This is part of the process. Those who
actually sit through trials gain a better appreciation of the selection process.
Many who are not selected equate the concept of jury service with actually
sitting on a jury and believe that it is a waste of time if they are not
selected. It is important for those who feel that way to understand the
concept of jury service is not limited to actually serving. It includes
appearing for purposes of going through the selection process.”139
Murray and Kirby explain that the San Joaquin court mails summonses five
weeks in advance of the appearance date, even though California law
requires only a 10-day notice. This gives people time to make arrangements
with employers and childcare providers. An exit survey of jurors conducted
in 1999 showed 89 percent found the overall jury service to have been
positive; and 39 percent gained more positive impressions of the justice
system during their jury service.140
Other hallmarks of the San Joaquin program, as described by Murray and
Kirby, include:
•

In 2000, the court began requesting updated voter registration and
licensed drivers lists every six months instead of every year;

•

Following up on efforts to reach those who do not respond to the initial
summons, using techniques developed in the county’s Juror Education
and Compliance Program to reach about 70 percent of the nonresponders. The eventual response rate eliminates much of the statistical
disparity between the jury pool and actual juries;

•

Providing live orientations for people summoned to jury service, with
judges available at the end of the sessions to answer questions;

RACIAL AND ETHNIC BIAS IN JURY SELECTION

•

Establishing a jury service committee to monitor and evaluate jury service
issues in the county. Judges, court administrative staff, and members of
the general public all serve on the committee;

•

Instituting a school program called Courtroom to Schoolroom that
emphasizes the importance of jury service;

•

Distributing an informational brochure for employers, and awarding
certificates of appreciation to employers who pay employees while they
are on jury duty; and

•

Engaging in outreach activities toward the local Latino community. An
informational flyer on jury service was translated into Spanish, and court
administrators made presentations before community groups to
encourage participation.

Stockton County improved facilities in the jury assembly room by installing
computer modems and subscribing to select satellite television channels that
members of the jury pool could watch while waiting to be assigned to a
courtroom. Jury rooms were also redecorated and stocked with reading
materials.
The Stockton Record published two three-part series about juries during
Jury Appreciation Week in 2000 and 2001. In the first series, Murray
explained in a section entitled “Jury of Your Peers—No Such
Constitutional Right” that appellate courts have found that the right to a
jury trial includes a right to a “fair and reasonable cross-section of the
community,” which demands that courts ensure the fairness of the
master source list and the venire.141
In the second series, entitled “Jury Duty—It’s Not Fair If You’re Not
There,” Murray and Kirby provided straightforward responses to questions
such as “How did my name get selected for jury duty?” and “How often
can I be summoned?”142

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The American Bar Association Recommendations

The American Bar Association has produced the following
recommendations for preventing discriminatory practices in the jury
selection process:

96

•

Compare the source list being used with the population data of the
jurisdiction;

•

Take corrective action(s) such as supplementing the source list with
additional lists;

•

Examine court policies on granting excuses;

•

Take corrective action(s) such as establishing written and uniform
procedures for granting excuses;

•

Examine court practices with respect to peremptory challenges during the
voir dire process; and

•

Take corrective action if the voir dire process discriminates against any
group in the jurisdiction.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Direct the AOPC to design a standardized system for court
administrators throughout the Commonwealth to record the race and
ethnicity of all individuals who are summoned for jury service, who
appear in court in response to a summons, and who are selected for
jury duty. This information should be retained and reported by each
court administrator to the AOPC on an annual basis.
2. Direct county court administrators to use multiple sources in compiling
jury lists, rather than relying strictly on voter registration lists in
which young people and minorities are generally underrepresented and
driver’s license lists which tend to exclude minorities, the poor, the
young, and the elderly. Other possible source lists that have been used
in other states include utility subscriber lists, welfare lists, tax collection
lists, high school graduate lists, library address lists, and unemployment
compensation lists.
3. Direct trial judges to exercise increased scrutiny to ensure that
peremptory challenges are not used improperly based on race in the
voir dire process.
4. Expand voir dire to allow counsel the opportunity to question jurors
more extensively than is now permitted in many counties, to better
ensure fairness and impartiality in the jury selection process.
5. Direct trial judges to engage in individual, not group, questioning of
potential jurors regarding racial bias.143
6. Direct county court administrators to tighten standards for exemption
from jury service and to enforce strictly the jury summons.
7. Require that all Batson and other similar challenges be made part of the
official court record.
8. Require that a database be established regarding every Batson challenge
and other similar challenges. The database should contain the name
and race of each juror, the basis for the challenge, the names of
the striking and challenging attorneys and trial judge, and all other
information pertinent to the challenge. All courts should use
comparable codes to create and maintain such a database

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9. Consistent with the recommendations set forth in Chapter 3, encourage
court administrators to establish licensed childcare facilities in
courthouses with funding through Title 42 Pa. Cons. Stat. Ann. § 3721
for individuals who have been summoned for jury duty.

98

10. Consistent with the recommendations set forth in Chapter 3, require
training of court administrators to understand better how procedures
by which prospective jurors are disqualified, exempted, and excused
may adversely affect the composition of the jury pool, and to identify
ways to address these inequities.

TO THE LEGISLATURE
The Committee recommends that the Legislature enact legislation to:
1. Require employers with a certain minimum number of employees to
develop a paid leave policy for employees so that employees will receive
their regular pay while serving on a jury. Employers should receive a
state tax credit reflecting their payments to active jurors.
2. Establish a statewide Office of Jury Commissioner, similar to those in
Massachusetts, Connecticut, and New York, whose function is to
produce a master list of jurors for each county in a more cost-effective
and efficient manner, and to increase minority representation on juries
throughout the Commonwealth. It is intended that a centralized process
of gathering the most representative jury source lists, eliminating
duplication of names, and utilizing a professional service to regularly
update juror addresses will increase the likelihood of producing a more
representative pool of jurors for each county.
3. Conduct a study of juror compensation provided by employers and the
courts for jury service. Following completion of the study, enact
legislation to increase juror pay if supported by the results of the
study.144
4. Conduct a study of transportation problems that impede citizens’ abilities
to serve as jurors, and develop solutions supported by the study.

TO BAR ASSOCIATIONS
The Committee recommends that county bar associations, in conjunction
with jury commissioners and court administrators:
1. Develop community outreach programs to emphasize the importance of
jury service and encourage citizens to perform their jury duty,
particularly in minority communities.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

ENDNOTES
············································
1

Evan R. Seamone, State Inaction to Increase Jury Compensation and the Need to Identify ForwardLooking Standards, N.Y.U. J. Legis. & Pub. Pol’y, Vol. 5, Number 2, 291 (2002) [hereinafter Seamone].

2

Seamone, supra, at 291.

3

An annotated bibliography of relevant articles on race and jury service is attached in Appendix Vol. I.

4

Allegheny County.

5

Testimony of Gladys Scott, Erie Public Hearing Transcript, pp. 26–27 [hereinafter Scott Testimony].

6

Among the articles are the following: Mark Houser, “A Jury of Peers?” Pittsburgh Tribune-Review,
July 21, 2002 [hereinafter Houser, “A Jury of Peers?”]; “State Senate: Jury Study Ordered,”
Pittsburgh Post-Gazette, October 11, 2002.

7

Ralph B. Taylor and Lillian Dote, Understanding Juror Selection Processes Through Jury
Documents and Administrator Surveys: Exploring Implications for Under-Representation of
Populations of Color, Phase I report to the Work Group on Racial and Gender Bias in Jury
Selection (Philadelphia: August 2001). See Appendix Vol. I [hereinafter Taylor and Dote].

8

Taylor and Dote, supra at 22.

9

Id. at 40.

10

Id. at 41.

11

Id.

12

In many jurisdictions, the lack of African American and Latino jurors is a question of numbers. As
of 1999, the Commonwealth’s residents included 1.6 million people of color, including more than
1.1 million in four counties—Philadelphia, Allegheny, Delaware, and Montgomery. The ratio of
minority residents was 45.7 percent in Philadelphia County, 11.7 percent in Allegheny County, 5.6
percent in Delaware County and 5.1 percent in Montgomery County. Of the remaining 63 counties,
only Delaware and Montgomery had minority populations of more than 5 percent, while nine
others had minority populations between 1 and 5 percent. The minority population was therefore
less than 1 percent in 55 of the state’s 67 counties. Ralph B. Taylor, Jerry H. Ratcliffe, Ron Costeck
and Lillian Dote, Potential Under-Representation by Race and Class in the Middle Stages of Juror
Selection in the Commonwealth of Pennsylvania: A Located Analysis, Phase II report to the Work
Group on Racial Bias in Jury Selection (Philadelphia: June 2002), Table 1, p. 14, Appendix Vol. I
[hereinafter Taylor, Ratcliffe, Costeck and Dote].

13

Taylor and Dote, supra at 41.

14

Id. at 42.

15

Taylor, Ratcliffe, Costeck and Dote, supra.

16

Id. at 4.

17

Id. at 2.

18

Id. at 3.

19

Id. at 4.

20

Id.

21

Id. at 5.

22

Id.

23

Id.

24

Id. at 6.

25

Id.

26

Id. at 12.

27

See John F. Karns, J.D., Ph.D., Statistical Representativeness of a Sample of Persons Selected for Jury
Duty in Allegheny County, Pennsylvania May 12, through October 11, 2001 at Appendix Vol. I.

28

Houser, “A Jury of Peers”?, supra.

29

Testimony of Timothy P. O’Brien, Pittsburgh Public Hearing Transcript, pp. 163–164 [hereinafter
O’Brien Testimony].

99

RACIAL AND ETHNIC BIAS IN JURY SELECTION

100

30

Id. at 166–167

31

Testimony of Honorable Mark Ciavarella, Jr., Wilkes-Barre Public Hearing Transcript, p. 210
[hereinafter Ciavarella Testimony].

32

Id. at 211.

33

Scott Testimony, supra at 33.

34

Id. at 27.

35

Id. at 31.

36

Testimony of James Minella, Wilkes-Barre Public Hearing Transcript, p. 120 [hereinafter Minella
Testimony].

37

Testimony of J. Robert Chuk, Harrisburg Public Hearing Transcript, p. 89 [hereinafter Chuk
Testimony].

38

Testimony of Allan Kirschman, Pittsburgh Public Hearing Transcript, p. 80 [hereinafter Kirschman
Testimony].

39

Id. at 81.

40

Id. at 77.

41

Id. at 74–75.

42

Minella Testimony, supra at 121.

43

Id. at 123.

44

Id.

45

Scott Testimony, supra at 26.

46

Honorable Stephanie Domitrovich, Jury Source Lists and the Community’s Need to Achieve Racial
Balance on the Jury, 33 Duq. L. Rev. 39 (1994).

47

Testimony of Honorable Stephanie Domitrovich, Erie Public Hearing Transcript, p. 65 [hereinafter
Domitrovich Testimony].

48

Id. at 67.

49

Id. at 82.

50

Id.

51

Id. at 67.

52

Professor Baldus’ testimony and study is described at length in Chapter 6 of this report, Racial and
Ethnic Disparities in the Imposition of the Death Penalty.

53

Testimony of David Baldus, Philadelphia Public Hearing Transcript, p. 62 [hereinafter Baldus Testimony].

54

Id. at 67.

55

Id. at 69.

56

Id. at 85.

57

Id. at 65–66 and 85.

58

Id. at 64.

59

Id. at 77–78.

60

Id. at 81.

61

Id. at 82.

62

Testimony of Felipe Restrepo, Harrisburg Public Hearing Transcript, p. 84 [hereinafter Restrepo
Testimony].

63

Testimony of Robert Foreman, Pittsburgh Public Hearing Transcript, p. 171 [hereinafter Foreman
Testimony].

64

Testimony of Gary Tennis, Philadelphia Public Hearing Transcript, p. 265 [hereinafter Tennis
Testimony].

65

Id. at 266.

66

Id. at 263–264.

67

Id. at 267–268.

RACIAL AND ETHNIC BIAS IN JURY SELECTION

68

Testimony of Charles Cunningham, Philadelphia Public Hearing Transcript, p. 304 [hereinafter
Cunningham Testimony].

69

Id. at 305.

70

Testimony of Clifford Boardman, Philadelphia Public Hearing Transcript, p. 356.

71

Id. at 355–356.

72

Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic Bias in
the Courts, p.192 (1997).

73

Id.

74

Id.

75

Id. at 196.

76

Id.

77

The Report of the Oregon Supreme Court Task Force on Racial/Ethnic Issues in the Judicial System,
p. 73 (1994).

78

Id. at 74.

79

Id.

80

Id. at 78.

81

Id. at 79.

82

The Report of the Ohio Commission on Racial Fairness, p. 31 (1999).

83

Id.

84

Id. at 32.

85

Id.

86

Id. at 33.

87

Report of the New York State Judicial Commission on Minorities, Volume Two, The Public and the
Courts, p. 222 (1991).

88

Id. at 225.

89

Id. at 229.

90

Id. at 250.

91

Id. at 233.

92

Id. at 233–234.

93

Id. at 235, 251.

94

Id. at 251.

95

Id. at 239.

96

Id. at 241–242.

97

Id. at 251.

98

Id. at 251–252.

99

New Jersey Supreme Court Task Force on Minority Concerns, Final Report, pp. 221–222 (1992)
[hereinafter New Jersey Final Report].

100

Id. at 223.

101

State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987).

102

Id.

103

New Jersey Final Report, supra at 226.

104

Id.

105

Id.

106

Id.

107

Id.

108

Id. at 229.

109

Id. at 229–230.

101

RACIAL AND ETHNIC BIAS IN JURY SELECTION

102

110

Id. at 230.

111

Id.

112

Id. at 231.

113

Id. at 234.

114

The Gender, Race, and Ethnic Bias Task Force Project in the D.C. Circuit, IVB-112 (1995).
“In 1993 juror questionnaires showed that 70% of jurors in federal district court were African
American, 27.4% were white and 1.3% were ‘other’ (1.3% did not respond).”

115

Id.

116

Id. at IVB-113.

117

Id.

118

Id. at IVB-115.

119

Id. at IVB-123–124.

120

Id. at IVB-125.

121

Id. at IVB-126.

122

Id.

123

Id. at IVB 126–127.

124

Id. at 127.

125

The Report of the Third Circuit Task Force on Equal Treatment in the Courts, 42 Vill. L. Rev.
1355, 1757 (1997).

126

Id. at 1801.

127

Id. at 1759.

128

Id. at 1760.

129

Id. at 1802–1803.

130

Id. at 1804.

131

Id. at 1785.

132

Id.

133

Id. at 1765.

134

Report of the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts,
p. 101 (1997) [hereinafter Second Circuit Report].

135

United States v. Jackman, 46 F.3d 1240, 1242–44 (1995).

136

Id. at 1242.

137

Second Circuit Report, supra at 102.

138

Id. at 104.

139

William J. Murray, Jr., and Annette Kirby, “Jury Duty—It’s Not Fair If You’re Not There”
(Stockton Record, May 2000) [hereinafter Murray and Kirby, “It’s Not Fair If You’re Not There”].

140

William J. Murray, Jr., and Annette Kirby, “Jury Duty—Many Are Called, Few Are Chosen, All Are
Appreciated” (Stockton Record, May 2001).

141

William J. Murray, Jr., and Annette Kirby, “Jury of Your Peers—No Such Constitutional Right”
(Stockton Record, May 2001).

142

Murray and Kirby, “It’s Not Fair If You’re Not There,” supra.

143

The Committee recommends the use of written questionnaires but not as a substitute for counseldirected voir dire.

144

The study should include consideration of a pay rate that will increase public participation in jury
service in general, and will facilitate efforts to create more representative juries; an increase in the
rate of travel reimbursement for jurors; special provisions for jurors who are compensated on an
hourly basis and provisions requiring employers with a prescribed minimum number of employees
to pay for the first three days of an employee’s juror service.

3

GENDER BIAS IN
JURY SELECTION

104

INTRODUCTION

106

SYNOPSIS OF FINDINGS

107

RESEARCH METHODOLOGY

114

PUBLIC HEARING TESTIMONY

116

BEST PRACTICES

120

RECOMMENDATIONS

122

ENDNOTES

GENDER BIAS IN JURY SELECTION

INTRODUCTION

104

A hallmark of American constitutional democracy is the right to an
impartial jury. The courts have generally interpreted this to mean that
defendants are entitled to a jury of their peers, or to a jury that accurately
represents a cross-section of the community. U.S. Supreme Court rulings
over the past century have gradually expanded interpretation of this
provision to mean that discrimination in jury selection against African
Americans, Latinos, and women is impermissible. The Court’s 1946 ruling
in Ballard v. United States, 329 U.S. 187 (1946), prevented women from
being excluded from jury service. Later, the Court, in its 1978 ruling in
Duren v. Missouri, 439 U.S. 357 (1978), found that defendants could prove
a violation of Sixth Amendment rights if they could show particular groups
had been underrepresented on juries, whether or not the court had
intentionally sought to exclude these groups. In short, the Court held that
an unrepresentative jury is an unfair jury.
Some believe that the deliberate exclusion of distinct segments of the
population from juries is, for the most part, a thing of the past. Others
argue that American courts have not entirely dismantled barriers to jury
participation that have the effect of excluding certain individuals or
that impose an undue burden upon them. Moreover, sometimes actions that
are perceived as supportive of women, such as excusing them from jury
participation, can adversely impact the goal of representative participation.
In its study of Gender Bias in Jury Selection, the Committee investigated
the barriers faced by Pennsylvanians, particularly women, who are
summoned to serve on juries.
There is an extensive body of research on jury selection and juror treatment
that identifies a wide variation in the willingness and ability of women to
serve on juries. Factors analyzed in the literature include race, age,
education, and socioeconomic status of jurors.1 While some of the
questions asked by the Committee are similar to questions asked in the
earlier research, the Committee did not seek to develop a comprehensive
picture of the myriad groups affected by practices of jury selection and
juror treatment. Most of the studies do not consider gender as a
determinant of summons response or as a variable likely to affect either
citizens’ willingness to serve or their experiences as jurors; a notable
exception is the Losh, Wasserman, and Wasserman article cited above in
endnote 1, which finds no significant difference in the propensities of men
and women to request excuses or deferrals or to disregard a call to jury
service. Many of the studies, however, do connect an ability to serve with
issues that appear to be gender-related. Most notable among these issues
is a need for childcare.

GENDER BIAS IN JURY SELECTION

Focus of Inquiry
The Committee identified three juror outcome factors that may be
influenced by the respondent’s gender. The three are summons response,
jury selection, and experiences during trials and deliberations.
First, the Committee investigated summons response, asking whether
women and men may have distinct scheduling needs or problems that
influence their ability to serve. In this context, the Committee discussed
issues that are often gender-related, such as childcare. In addition, the
Committee considered variables such as economic hardship, employer
compensation, and transportation needs that, while not specific to gender,
may affect men and women differently, according to differences in
socioeconomic status, occupation, and family roles.
Second, the Committee investigated jury selection, asking whether women
and men tend to be struck from juries at different rates in particular types
of cases: Do women and men tend to be asked different types of questions
during voir dire? Are men and women treated differently in the selection
process by attorneys or the court?
Third, the Committee examined whether women have different experiences
during the trial itself and during deliberations: Are women, for instance,
expected to consider evidence differently from men in certain types of cases,
and during deliberations do women and men tend to play different roles?
Under this final topic, the Committee’s specific objectives were to consider
the rate at which women and men are selected as presiding jurors
(forepersons), to measure differences by gender in how active individuals
are in deliberations, and to gather evidence about the treatment of jurors by
other jurors.

Research Methodology
The Committee utilized a variety of research methods in gathering its data.
In April 2001, two surveys were mailed to jury commissioners in each
of the 67 counties in Pennsylvania, seeking information on gender-related
issues in jury selection and jury service. Follow-up interviews were then
conducted with selected jury commissioners in an effort to discuss courtsponsored childcare programs in more detail. The Committee also
obtained anecdotal information from witnesses who testified during the
public hearings. Finally, the Committee consulted with other states and
selected counties in Pennsylvania to seek information about other courtsponsored programs that have been effective in promoting participation.

105

GENDER BIAS IN JURY SELECTION

SYNOPSIS OF FINDINGS
The Committee’s findings, elaborated in greater detail below, indicate that
men and women do face different obstacles to jury service.

106

•

First, the Committee found that responsibility for childcare falls
predominantly upon women, as does the responsibility for elder care.
Several Pennsylvania courts have developed childcare programs or
childcare reimbursement programs, and the Commonwealth has taken
steps to enable courts to provide such programs.

•

Second, the Committee found that travel to and from the courthouse is
generally more difficult for women than for men. While recommending
further research into this discrepancy, the Committee suggests that courts
look at ways to facilitate jurors’ access to the courthouse via public
transportation wherever it is available.

•

Third, the Committee found that jury service presents an economic
hardship for both men and women. Given the predominance of either
men or women in certain occupations, it behooves the courts to
investigate juror compensation by employers in those workforce sectors
that tend to employ one gender or the other. Based on the findings, the
courts might consider increasing compensation for jurors.

•

And fourth, the Committee found some evidence that the interpersonal
dynamics within the jury room can operate to the detriment of the female
jurors. While the research clearly shows that women in Pennsylvania are
less likely than men to be chosen as presiding jurors, the scope of the
study did not permit a consideration of differences in the ways that
women and men regard deliberations. There is abundant psychological
research on gender differences in handling conflict and in processing
information, yet little of this research has been brought to bear on jury
decision-making. It may be helpful for the courts to issue instructions
emphasizing the importance of gender equality in the selection of the jury
foreperson and encouraging sensitivity in juror deliberations. Courts may
also benefit from training their employees to recognize patterns of male
and female behavior and to be vigilant in identifying potential coercion or
conflict among jurors based upon gender.

GENDER BIAS IN JURY SELECTION

RESEARCH METHODOLOGY
JURY COMMISSIONER SURVEY
Summary
The Committee sent a survey to jury commissioners in each of the 67
counties in the Commonwealth in order to determine, anecdotally, if gender
influences willingness to serve on juries, participation in jury deliberations,
and juror treatment. A copy of the survey is included in Appendix Vol. I.
Responses to the survey were submitted by 49 jury commissioners
(73 percent), including two court systems each comprising two counties.
The results of the jury commissioner survey identified three primary factors
that impede jury service for women: the need for childcare, the need for
elder care, and transportation problems. While ameliorating the problems
will likely increase the participation of women on juries, according to the
survey, the changes are also likely to benefit many men. And while the
survey generally did not find a gender-related component in juror treatment
policies, the fact that women are less likely than men to serve as jury
forepersons may indicate that women play a less significant role in leading
jury deliberations.

The Survey Instrument and Method
The Jury Commissioner Survey contained eight questions concerning jury
commissioners’ perceptions of how male and female jurors felt about
various aspects of jury service. Questions were grouped into two categories:
Whether gender is related to willingness to serve and jury selection; and
whether jurors’ gender has an effect on juror treatment and jury
deliberations.
First, respondents were asked about how frequently jury summons
respondents cited various issues as impediments to jury service. The issues
included childcare, elder care, economic hardship, transportation, lack of
appropriate wardrobe, length of trial, length of trial day, inability to render
a fair decision, and lack of confidence that one’s opinions will count.
Respondents were also asked about whether, in their opinion, peremptory
challenges are used more often to strike men or women. Finally,
respondents were asked whether men or women invoke jury service excuses
or deferrals more frequently, and whether those failing to appear for jury
service appear to be disproportionately male or disproportionately female.

107

GENDER BIAS IN JURY SELECTION

Second, respondents were asked a series of questions about concerns raised
by empaneled jurors regarding the adequacy of physical facilities and the
civility of the judge, attorneys, court personnel, and other jurors.

108

In this latter series of questions, respondents were asked whether such
concerns tend to be raised more by men or by women, and whether, in their
opinion, men and women might have the concerns even if they do not raise
them with the jury commissioner. Respondents were also asked to estimate
the ratio of male and female jury forepersons chosen by the jury panels.
An additional survey question sought to identify courts in which the first
juror selected is automatically made the presiding juror.
Survey questions about peremptory strikes, deferral requests, excuse
requests, and summons non-respondents had three answer categories—
“more frequently women,” “more frequently men,” or “no difference.”
All other questions, which addressed the frequency with which the various
concerns were raised, had four scalable categories for responses—
“never or rarely,” “sometimes, but not frequently,” “frequently,” and
“very frequently or always.” The scaling of responses, from one to four in
order of frequency, enabled the calculation of averages.

Jury Selection Findings
Respondents were asked about nine factors that might serve as
impediments to jury service. In each case, the survey asked how frequently
each of the nine factors was cited by all jurors, by male jurors and by
female jurors. Only three of the nine—childcare, elder care, and economic
hardship—were cited with any frequency, which, in this case, meant a mean
response greater than two, between “sometimes, but not frequently” and
“frequently.” Four other factors—transportation, the length of trials,
the length of the trial day, and the inability or reluctance to render a fair
decision—were noted by at least 10 respondents as a concern of jurors at
least some of the time. The two remaining factors—lack of appropriate
wardrobe and lack of confidence that one’s opinions would count—
were judged by virtually all respondents as negligible factors in terms of
willingness to serve on a jury.

GENDER BIAS IN JURY SELECTION

TABLE 1
Impediments to Jury Service for all Jurors and by Gender
Factor

All Jurors

Men

Women

Economic hardship *

2.84

2.88

2.61

Childcare *

2.27

1.31

2.65

Elder care *

2.14

1.55

2.31

Length of trial

1.80

1.80

1.76

Transportation *

1.61

1.33

1.63

Inability to reach a fair decision

1.61

1.53

1.65

Length of trial day

1.35

1.27

1.39

Confidence that one s opinions will count

1.20

1.14

1.14

Appropriate wardrobe

1.04

1.02

1.02

N

49

49

49

*p<.05 for H0: mean response for men = mean response for women.
* Figures shown are the mean estimate of respondents on a scale of one to four where
one indicates the factor is never mentioned by jurors and four indicates that the factor is
very frequently or always mentioned by jurors.
* Male and female means are responses to separate questions. The male and female
means should not necessarily average out to the mean for all jurors.

Table 1 presents the mean response for each of these questions for all
jurors, and separately for male and female jurors. Questions on which
differences in responses for men and women reached conventional
standards of statistical significance (p<.05) are marked with an asterisk.
As the table shows, four factors—childcare, elder care, economic hardship
and transportation—produce different results based on the juror’s gender.
Men are more likely than women to cite economic hardship as a factor,
while women are more likely than men to cite childcare, elder care,
and transportation problems as factors. The reasons for each of these
differences seem likely to be related to workforce participation—
more women than men are responsible for the care of children or parents,
and men seem more likely to be the primary breadwinners. In the case
of transportation, it may be that in families with a single car, men are more
likely than women to rely upon that car to get to work.
Respondents were also asked whether men or women were more likely to
request a deferral, request an excuse, or fail to show up. In all three cases,
most respondents responded that there was no difference between men and
women.

109

GENDER BIAS IN JURY SELECTION

Jury Service Findings

110

Fewer variances according to gender were found in responses to the battery
of questions on jury service circulated by the Committee. The questions
related to jury service used the same four-point scale used in the survey
questions regarding jury selection, asking respondents to rate the frequency
of complaints from jurors regarding court facilities and the civility of
judges, court personnel, attorneys, and other jurors. Respondents were
also asked their opinions about whether any such complaints were justified.
In all categories but one—the adequacy of court facilities—at least
90 percent answered “four,” the most favorable response. Seventeen jury
commissioners, or 35 percent of the respondents, commented on the quality
of court facilities, including the jury waiting room, the food available for
jurors, and the rest rooms. There was no variation according to gender
in the frequency of complaints about the facilities.
The survey question about jury forepersons was the only one to show a
pronounced variation of responses according to gender. The mean
percentage of male forepersons reported in the survey, when averaged
across participating jurisdictions, was 58.9 percent, while the mean
percentage of female forepersons was 38.9 percent. (The figures did not
add up to 100 percent because respondents reported these figures in
separate questions.) Approximately 20 percent of respondents claimed no
knowledge of the gender of forepersons, and two respondents noted that
the first juror selected is always the presiding juror.
Courts, of course, have little control over the selection of presiding jurors.
It is unclear what the courts might do to exert more influence in this
regard, aside from requiring that the first juror selected is to be the
presiding juror—a technique that may have other drawbacks unrelated to
gender. The finding about the disproportionate number of male forepersons
does merit further study, however.
In conclusion, it is evident from these data that childcare, elder care, and
transportation are the primary issues that affect women’s participation on
juries. Subsequent sections of this chapter present information on the
attempts Pennsylvania courts have made to confront these issues and to
develop solutions to these problems.

GENDER BIAS IN JURY SELECTION

FOLLOW-UP SURVEY AND INTERVIEWS
To reach a clearer understanding of Pennsylvania courts’ accommodations
for jurors who are the primary caretakers of their children, the Committee
sent a second survey to each jury commissioner to request information
about the courts’ childcare practices. Nearly 88 percent of the
commissioners responded (57 of 65). A copy of the second survey is
included in Appendix Vol. I.
The survey asked whether the court has its own childcare facilities, whether
it provides compensation to jurors for childcare, and what policy it follows
for granting excuses or deferrals on the basis of childcare needs. In an
attempt to discover information the courts may already have collected from
jurors, the second jury commissioner survey asked the courts to pass along
copies of any exit surveys of jurors they may have conducted. In several
cases, the Committee went on to discuss childcare with courts that sponsor
programs.

Findings
The Committee identified two Pennsylvania counties that provide childcare
for jurors and a third—Monroe County in Northeastern
Pennsylvania—that provides a childcare reimbursement. The two counties
with childcare are Pike County, a small county of 28,000 people in
Northeastern Pennsylvania along the New York and New Jersey borders,
and Montgomery County, an area of 680,000 people that comprises many
of the Northern Philadelphia suburbs. Pike County did not provide details
of its program. Montgomery County, however, explained that the
Montgomery County Court Care Program was initiated in 1996 and is
funded through the county by means of a fee collected by the prothonotary
or clerk of courts. The program serves approximately 10 children per day
and is licensed by the Pennsylvania Department of Public Welfare. There is
no charge for the service and it is available to all families who have court
business. Prospective jurors receive information about the childcare when
they receive the jury summons, in a telephone message one day prior to jury
service, and in postings on the jury board in the marshaling room area.
In the follow-up survey, 55 of 57 respondents noted that they grant
prospective jurors a deferral for childcare reasons; the deferral is either
automatic or on a case-by-case basis, as determined by court personnel or
the judge. The survey also discovered that 43 of the 57 courts grant
excuses for childcare—again, either automatically or on a case-by-case

111

GENDER BIAS IN JURY SELECTION

basis. Each court, however, is different, and in some cases it was difficult to
distinguish between an excuse and a deferral. Flexibility in childcare
arrangements would seem to facilitate jury service for parents of young
children—a disproportionately female group according to the survey.

112

Still, some courts have had difficulty with this concept. Court reformers in
New York discovered during the 1990s that mothers of young children
were not only excused, but removed from the jury rolls; the women did
not receive summonses even when their children were older.2 Several
Pennsylvania counties seem to be aware of such potential problems.
Philadelphia County, for instance, excuses such parents for three years.
Allegheny County excuses parents for two years if they have pre-school
age children and for two to four months, upon request, if they have
elementary school children. Lebanon County excuses parents of young
children for one year, and along with Lehigh and Dauphin counties, allows
a parent caring for a disabled or special needs child to be excused for a
longer period of time. Several respondents also noted other circumstances
in which the courts seek to accommodate parents of young children by
excusing or deferring jury service. In Bucks County, for instance, parents
who are called to serve on a jury during the summer may defer their service
until their children have returned to school.

Exit Surveys
Finally, in an attempt to solicit further data on the relationship between
gender and jury service, the Committee asked the jury commissioners about
juror exit surveys. In response, 14 of the 57 respondents forwarded copies
of their exit surveys and two other respondents noted that their courts were
in the process of developing exit surveys. Nine of the 14 counties collect
information on the exit survey respondent’s gender. Montgomery,
Chester, Bucks, Dauphin, Blair, and Warren/Forest counties use the same
standardized survey. This survey collects demographic information on the
gender, age, and occupation of the jurors, and it asks them how they felt
about jury service in general; about the amenities of the court and the
surrounding area; and about the one-day/one-trial system. Respondents are
also asked if they lost income due to jury service, whether they had served
before, and, if so, how the latest service compared with the previous
service. And, if they had not served before, whether the experience met
their expectations. Elsewhere, the group found that Carbon and
Franklin/Fulton Counties use their own exit surveys, with similar questions.
Lancaster County has an exit survey that asks jurors three questions related
to childcare: First, whether they had to find and pay for childcare in order

GENDER BIAS IN JURY SELECTION

to serve; second, if so, whether they would use court-provided childcare
if they were to serve again; and third, whether they would be willing
to donate their jury pay and mileage reimbursement to the court if it were
to use the funds to establish a childcare program.
By systematically collecting and tabulating the data from these surveys, the
courts could explore many issues through jurors’ eyes—issues that include
the economics of jury service, concerns about juror treatment, and concerns
about gender. But in follow-up interviews with the counties that conduct
juror exit surveys, the Committee found that most court systems retain the
data for only a short time, and none for longer than one year. Further, the
courts do not systematically record the information in a database, which
could then be analyzed. The juror exit survey is nonetheless a valuable tool
for obtaining information with gender implications. With this in mind, the
Committee recommends that all counties distribute a standardized juror
exit survey and collect and retain the data for regular analysis.

CAPITAL JURY PROJECT DATA
In addition to conducting surveys and personal interviews, the Committee
also obtained data from the Capital Jury Project, a 14-state study of the
jury deliberation process in death penalty cases sponsored by the National
Science Foundation and coordinated by William Bowers, principal research
scientist, College of Criminal Justice at Northeastern University. The data
for the study was obtained from in-depth interviews with 1,155 jurors in
death penalty cases around the country. The Pennsylvania research in this
study was conducted by Wanda Foglia, J.D., Ph.D., associate professor of
law and justice studies at Rowan University, along with John Lamberth,
Ph.D., associate professor of psychology at Temple University. Most of
Foglia’s work related to the role played by race in the jury deliberation
process and in the outcomes of capital murder cases. At the request of the
Committee, Foglia reviewed her data from Pennsylvania, focusing on the
experience of female jurors in capital murder cases. While the study was
not aimed at detecting gender bias, she found a small amount of evidence
suggesting that female jurors were more dissatisfied than males with their
jury experience. In particular, female jurors were more likely to say that the
jury decided guilt and punishment at the same time and that the jurors had
become too emotionally involved in the case. In reviewing the narrative
accounts from female jurors, she found complaints that men had pressured
them during the decision-making process. While these findings are not
statistically significant, Foglia concluded that the suggestion of gender bias
in the jury room may warrant further study.

113

GENDER BIAS IN JURY SELECTION

PUBLIC HEARING TESTIMONY
Public hearings held by the Committee yielded several statements from
witnesses on the issue of gender bias within the jury selection process, as
well as statements about impediments faced by women in serving as jurors.

114

The Committee heard evidence of systemic discrimination against women
in the jury selection process in capital cases from Robert Dunham, director
of training for the Capital Habeas Corpus Unit in the Federal Defender’s
Office in Philadelphia. Dunham described a case involving a prosecutor
who, during jury selection for a capital murder case, exercised a much
greater percentage of peremptory strikes against female prospective jurors
on the basis of a “stereotypical view that, because someone was a woman,
she would not be able to make the choice as to whether someone should
live or die.”3 In that case, the prosecutor had struck nine women and one
man from the jury panel. During voir dire, he directed only to female
prospective jurors a question about difficulty they might have in making a
decision between life and death for a defendant. After the court precluded
the prosecutor’s improper questioning, he accelerated his rate of directly
striking women from the panel.
During the same public hearing, the Committee also heard testimony from
David Baldus, professor of law at the University of Iowa and the author
of a large-scale study on the impact of race on the use of peremptory
challenges and sentencing decisions in capital murder cases in Philadelphia
County. Baldus testified that his data indicated that the United States
Supreme Court decision in J.E.B. v Alabama, 511 U.S. 127 (1994),
prohibiting gender discrimination in the jury selection process, has had
little, if any, impact on the use of peremptory challenges by prosecutors and
defense counsel in Philadelphia.4 He stated that in Philadelphia between
1981 and 1997, “over 2,100 venire members were excluded from
jury service because of their race and over 800 were excluded because of
their gender.”5
Baldus found the principal targets of peremptory challenges by prosecutors
in capital murder cases were young, middle-aged and older African
American women and young African American men. As evidence, he cited
advice provided by former prosecutor Jack McMahon of the Philadelphia
District Attorney’s office on a training tape for newly hired prosecutors
between 1986 and 1988. On the tape, McMahon criticizes prosecutors who
“treat blacks all the same.”6 He ranks “the young ones” as the most
dangerous potential jurors in capital murder cases, followed by middle-

GENDER BIAS IN JURY SELECTION

aged and older African American women, the so-called “black moms”
who might be expected to exhibit a “maternal instinct” for a defendant.7
He advises young prosecutors to use their peremptory challenges to strike
African American potential jurors in that order.

The principal targets of peremptory challenges by
prosecutors in capital murder cases were young,
middle-aged and older African American women and
young African American men.
—Professor David Baldus

Other witnesses before the Committee identified specific impediments that
tend to reduce the numbers of women serving as jurors. The jury
commissioners from York County and Lackawanna County both testified
they heard a significant number of people requesting to be excused from
jury duty, based upon their lack of child or elder care. Robert Chuk, the
York County jury commissioner, stated that prospective jurors’ lack of
childcare was a problem for a “large number of people.”8 He added that he
places requests for an excuse based on lack of childcare “fairly high on the
list” and indicated that the court routinely grants excuses from jury service
for that reason.9 Chuk also observed that of prospective jurors requesting
an excuse because of a lack of childcare, the “vast majority are women.”10
The Committee identified economic hardship as a second impediment to
juror service, affecting both males and females. Chuk testified that a high
percentage of excuses from jury service are granted on the basis that the
prospective juror’s employer will not pay him or her for the dates of jury
duty.11 James Minella, jury commissioner of Lackawanna County, testified
that “economic reasons” for an excuse from jury duty were common.12 He
cited the hypothetical example of a construction worker who has not
worked in six months, has a large family, and cannot afford to lose a day’s
pay to perform jury service. Minella indicated that such an individual
would be excused from service.13

Prospective jurors’ lack of childcare was a problem
for a “large number of people…Of prospective jurors
requesting an excuse because of a lack of childcare,
the “vast majority are women.”
—Jury Commissioner Robert Chuk

115

GENDER BIAS IN JURY SELECTION

BEST PRACTICES
CHILDCARE
Pennsylvania

116

The Pennsylvania Legislature enacted legislation in 2000
that provides for the start-up and daily operating
costs of childcare facilities in jurisdictions across the
Commonwealth.
After childcare was identified in the first jury commissioner survey as one
of the three main impediments to women serving as jurors, the Committee
sought to identify courts in Pennsylvania with functioning childcare
programs.
The Pennsylvania Legislature enacted legislation in 2000 that provides for
the start-up and daily operating costs of childcare facilities in jurisdictions
across the Commonwealth. The statute, set forth in Title 42 Pa. Cons. Stat.
Ann. § 3721, enables a county judicial center or courthouse to provide
“a childcare facility for use by children whose parents or guardians are
present at the county judicial center or courthouse, for a court appearance
or other matter related to any civil or criminal action where the person’s
presence has been requested or is necessary.” The facility must either be
located within the county judicial center or courthouse or must be readily
accessible to it, and the facility must be licensed and operated pursuant
to the regulations of the Pennsylvania Department of Public Welfare.
The statute also authorizes funding for start-up and operational costs of
court-sponsored childcare facilities through the collection of a $5 filing
fee for civil or criminal proceedings.

Montgomery County
The Committee’s research showed that Montgomery County has the only
court system in the Commonwealth that provides childcare in any
meaningful way, although other counties have indicated an interest in
establishing a similar program. Montgomery County created its Court Care
Center in 1995 as the Commonwealth’s first drop-in courthouse childcare
center to operate with a full-time professional childcare staff fully licensed
by the Pennsylvania Department of Public Welfare. According to the staff,
one factor behind creation of the center was a recognition of the

GENDER BIAS IN JURY SELECTION

disproportionate number of women who are unable to participate in the
jury system due to lack of childcare.

Other States
According to the Center for the Study of Social Policy in Washington, D.C.,
there are more than 30 courthouse childcare centers across the country.
The trend is detailed in the center’s report, Children in the Halls of Justice,
which was funded by the Department of Justice to help make the courts
more accessible to the public.
Orange County, Florida, has been providing childcare services for five years
at A Place for Children, serving people who have been summoned for jury
duty. The center is located in the courthouse and operated by the Children’s
Home Society of Florida, a non-profit social services agency, with support
from the Citizen’s Commission for Children, a department of the Orange
County Health and Community Services Division. The Orange County Bar
Association and the Ninth Judicial Circuit also provide assistance to
the center.
Massachusetts, New York, and California have all passed legislation to
encourage the establishment of courthouse childcare centers, either by
appropriating construction funds or by requiring all new courthouses to
include space for such services. Other states, including Minnesota and
Colorado, provide a $50 stipend for childcare for jurors.
In New York, at least 10 childcare facilities now link parents with court
business to services such as Head Start. The centers were created with the
help of New York’s Permanent Judicial Commission on Justice for
Children, which is co-chaired by Chief Judge Judith S. Kaye, State of New
York Court of Appeals. Other states, such as Florida, Arizona, and Illinois,
also boast childcare programs in some jurisdictions. Although the programs
differ in function and funding, they share a goal of providing a safe place
for children while their parents or caregivers have official business with
the court.

117

GENDER BIAS IN JURY SELECTION

JUROR COMPENSATION
Pennsylvania

118

Economic hardship was identified both by Committee surveys and hearings
as a serious impediment to jury service for both men and women in the
Commonwealth. Pennsylvania law authorizes courts to compensate jurors
with a nominal fee of $9 per day for the first three days of service,
increasing to $25 for each additional day.14 The statute also provides for
jurors to receive a travel allowance of 17 cents per mile, except within
Philadelphia County. Additionally, state law prohibits Pennsylvania
employers from penalizing an employee for responding to a jury summons
or serving as a juror, although the law does not require an employer to
compensate an employee for time lost due to jury service. The law exempts
from these provisions any retail or service industry employers with
fewer than 15 employees and manufacturing employers with fewer than
40 employees.

Other States
Lacking the resources to conduct large-scale research into juror
compensation in Pennsylvania, the Committee reviewed the practices of
other states as a means of seeking a basis for revisions in current
compensation provisions.15 In addition, the Committee identified several
states where legislation was enacted in an effort to increase juror
participation by increasing compensation. Highlights of that research
include the following:

New York
The state recently increased compensation from $15 per day to $40
per day.

Massachusetts
In 1979, Massachusetts adopted a new compensation plan which required
employers to pay employees their salaries for their first three days of
service, after which the state would pay $50 per day.

Arizona
Currently, Arizona pays jurors $12 a day, a payment set in 1970. A
committee recommended an increase to $50 a day with employers paying
the first three days. The additional cost would be partly offset by
eliminating mileage compensation for jurors who travel less than 50 miles
roundtrip.

GENDER BIAS IN JURY SELECTION

California
Currently, California does not compensate its jurors for the first day and
pays $15 a day thereafter. California’s Blue Ribbon Commission on the
issue recommended an increase in juror pay to $40 per day for the first
30 days of service and $50 per day afterwards. Under the recommended
program, unemployed jurors would be eligible to collect an employment
disability payment in the same amount.

New Hampshire
New Hampshire pays jurors $20 per day and $10 for a half day.
A commission also recommended increasing juror pay to $50 per day.

Washington
The state’s range of juror pay varies from $10 to $25 a day. A committee
recommended that the juror fee be increased to $10 per day for the first
day of service and $45 for each day thereafter.
The Committee also identified a large-scale study on the juror fee issue,
which the National Center for State Courts conducted for the state of
Arizona. The study could serve as a model for a similar effort in
Pennsylvania. Topics covered by the study include the extent to which jury
service presents a financial hardship for prospective jurors in Arizona,
jurors’ opinions on several alternative fee structures, and the estimated
costs of those alternative fee structures.
It would appear prudent for Pennsylvania to conduct a similar type of
analysis, given the responses to Committee surveys indicating that jury
service does indeed pose an economic hardship for men and women in the
Commonwealth, thereby reducing their participation rate. The analysis
could be performed with the assistance of the National Center for State
Courts and could serve the purpose of increasing jury participation by
all citizens of Pennsylvania. In particular, such an analysis could lead to
greater jury participation by women and minorities—the people most
disproportionately represented in the lower-income population. It is upon
women and minorities that jury service imposes the greatest financial
hardship.

119

GENDER BIAS IN JURY SELECTION

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:

120

1. Direct the AOPC to develop a standard jury service survey, or identify
one from among surveys that are already utilized in Pennsylvania
or other jurisdictions. The survey should be used across the
Commonwealth on a regular basis to afford the collection of pertinent
data about the composition of the jury, the process of jury selection,
the jurors’ experiences, and other relevant information about them
and their service.
2. Require training of court administrators to understand better how
procedures by which prospective jurors are disqualified, exempted, and
excused may adversely affect the composition of the jury pool, and to
identify ways to address these inequities.
3. Encourage court administrators to take advantage of recently enacted
state legislation, Title 42 Pa.Cons.Stat.Ann. § 3721, which provides for
funding for the start-up and daily operating costs of licensed childcare
facilities in courthouses across the Commonwealth.
4. Direct the drafting and implementation of a standard jury instruction to
state that the jury deliberation process be conducted in a manner that
provides all jurors, regardless of gender, the opportunity to speak and
be heard.
5. Require training of court personnel regarding interactions with jurors
to ensure gender neutrality.
6. Study gender dynamics within the jury room to determine whether
special instructions from the court or other measures are needed to
ensure full participation by females in the jury deliberation process.

GENDER BIAS IN JURY SELECTION

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Require employers with a certain minimum number of employees to
develop a paid leave policy for employees so that employees will receive
their regular pay while serving on a jury. Employers should receive a
state tax credit reflecting their payments to active jurors.
2. Conduct a study of juror compensation provided by employers and
the courts for jury service. Following completion of the study, enact
legislation to increase juror pay if supported by the results of the
study.16
3. Conduct a study of transportation problems that impede citizens’
abilities to serve as jurors, and develop solutions supported by
the study.

121

GENDER BIAS IN JURY SELECTION

ENDNOTES
············································
1

See generally Alker, Hosticka, and Mitchell, Jury Selection as a Biased Social Process, 11 Law and
Society Review 9 (1976); Alker and Barnard, Procedural and Social Biases in the Jury Selection
Process, 2 Justice Systems Journal 246 (1978); Boatright, Improving Citizen Response to Jury
Summonses, American Judicature Society (Chicago: 1998); Boatright, Generational Differences in
Attitudes Towards Jury Service, 19 Behavioral Sciences and the Law 235 (2001); Fukurai and
Butler, Organization, Labor Force, and Jury Representation, 32 Jurimetrics Journal 49 (1991);
Fukurai, Butler, and Krooth, Where did Black Jurors Go? A Theoretical Synthesis of Racial
Disenfranchisement in the Jury System and Jury Selection, 22 Journal of Black Studies 196 (1991);
Losh, Wasserman, and Wasserman, Reluctant Jurors: What Summons Response Reveals about Jury
Duty Attitudes, 83 Judicature 304 (2000); Munsterman, Lynch, and Penrod, National Center for
State Courts, The Relationship of Juror Fees and Terms of Service to Jury System Performance
(1991); Richert, Jurors’ Attitudes Towards Jury Service, 2 Justice Systems Journal 233 (1977);
Seltzer, The Vanishing Juror: Why are there not Enough Jurors?, 20 Justice Systems Journal 214
(1999).

2

See Unified Court System of New York State, The Jury Project: Report to the Chief Judge of New
York, pp. 6–8,and pp. 3034 (New York: 1994).

3

Testimony of Robert Dunham, Philadelphia Public Hearing Transcript, pp. 177178.

4

Testimony of David Baldus, Philadelphia Public Hearing Transcript, p. 69.

5

Id. at 7071.

6

Id. at 85.

7

Id.

8

Testimony of Robert Chuk, Harrisburg Public Hearing Transcript, pp. 9495

9

Id. at 95

10

Id. at 96

11

Id.

12

Testimony of James Minella, Wilkes-Barre Public Hearing Transcript, p. 131.

13

Id.

14

42 Pa. Cons. Stat. Ann. § 4561.

15

See Table below.

16

The study should include consideration of a pay rate that will increase public participation in jury
service in general, and will facilitate efforts to create more representative juries; an increase in the
rate of travel reimbursement for jurors; special provisions for jurors who are compensated on an
hourly basis and provisions requiring employers with a prescribed minimum number of employees
to pay for the first three days of an employee’s juror service.

122

GENDER BIAS IN JURY SELECTION

JUROR COMPENSATION TABLE

Employer Pays

Jury Fees (per day)

Alabama

Yes

$10

Alaska

No

$25

Arizona

No

$12

Arkansas

No

$20

California

No

$5 (a)

Colorado

Yes

$0 for 3 days, then $50 (b)

Connecticut

Yes, first 5 days only

$0 for 5 days, then $50 (c)

Delaware

No

$20

District of Columbia

Yes, up to 5 days

$30 (d)

Florida

No

$15 for first 3 days, $30 after

Georgia

Yes

$5–$35 (e)

Hawaii

No

$30

Idaho

No

$10 for half day

Illinios

No

$4–$15.50, varies among counties

Indiana

No

$7.50 if not selected—$17.50 if selected

Iowa

No

$10

Kansas

No

$10

Kentucky

No

$12.50

Louisiana

No

N/A

Maine

No

$10

Maryland

No

$10–$20 varies among counties

Massachusetts

Yes, first 3 days

Employer pays first 3 days, then state pays
$50 a day (f)

Michigan

No

$15 minimum

Minnesota

No

Rate set by Supreme Court

Mississippi

No

$25

Missouri

No

$6

Montana

No

$25

Nebraska

No

$35

Nevada

No

$15 for first 5 days, then $30

New Hampshire

No

$10 for half day

New Jersey

Employer pays salary
minus jury fees

$5

New Mexico

No

State Minimum Wage

New York

Partial

$40 (g)

North Carolina

No

$12 for first 5 days, then $30

North Dakota

No

$25

Ohio

No

Varies among Counties

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GENDER BIAS IN JURY SELECTION

124

Oklahoma

No

$20

Oregon

No

$10

Pennsylvania

No

$9 first 3 days, then $25

Puerto Rico

No

$20 minimum per day

Rhode Island

No

$15

South Carolina

No

$2–$12

South Dakota

No

$40

Tennessee

No

$10 minimum; may be supplemented by
local body

Texas

No

$6–$50

Utah

No

Day 1—$18.50; subsequent days—$49

Vermont

No

$30

Virginia

No

$30

Washington

No

$10–$25 varies among counties

West Virginia

No

$15

Wisconsin

No

$16 minimum per day

Wyoming

No

$30 for first 5 days, then $50 at discretion of
the court

Federal courts

No

$40 (h)

a) California: Minimum unless county stipulates higher fee;
b) Colorado: Fees include expenses to unemployed jurors;
c) Connecticut: Employer pays full-time employed jurors regular wages for first five days. Part-time
employed jurors and unemployed jurors are reimbursed for out-of-pocket expenses;
d) District of Columbia: For second day and thereafter;
e) Georgia: By opinion of the Attorney General;
f) Massachusetts: Fees include expenses to unemployed jurors. Such expenses may be paid from
first day of service;
g) New York: Employers with more than 10 employees pay $40 for the first three days; thereafter,
the state pays. If the employer pays the entire salary, then state pays nothing. Jurors who work
for employers with 10 or fewer employees (who do not pay regular wages while on jury duty) or
jurors who are not employed received $40 per day from the state;
h) Federal courts: A juror required to attend for more than 30 days may be paid, at the discretion
of the trial judge, an additional fee not to exceed $10 per day.

4

SENTENCING
DISPARITIES IN THE
CRIMINAL JUSTICE
SYSTEM

126

INTRODUCTION

129

SYNOPSIS OF FINDINGS

132

RESEARCH METHODOLOGY—KRAMER/ULMER STUDY

134

SPECIFIC STUDY FINDINGS

147

LIMITATIONS ON FINDINGS

149

PUBLIC HEARING TESTIMONY

152

OTHER TASK FORCE FINDINGS

157

APPELLATE REVIEW

158

RECOMMENDATIONS

159

ENDNOTES

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

INTRODUCTION

126

Changes in federal and state criminal justice policies have significantly
increased the population in our nation’s prisons. According to the Bureau
of Justice Statistics at the U.S. Department of Justice, local, state, and
federal prisons held a record 2.07 million prisoners as of June 30, 2000.1
In 1980, there were only 501,886 prisoners.2 As a consequence, one in
every 142 Americans was incarcerated in 2000, compared to one in every
451 in 1980.3
Pennsylvania’s state prison population has undergone a similar
transformation in the past 20 years, increasing from 8,243 in 1980 to a
record 38,481 as of August 31, 2000, a 367 percent increase.4

In Pennsylvania, racial and ethnic minorities account
for 66 percent of the state prison population but only
12 percent of the Commonwealth’s population.
Pennsylvania ranks sixth highest in the nation in the
racial disproportionality of its rate of incarceration…
—Pennsylvania Department of Corrections and U.S. Bureau of
Justice Statistics

The explosion in the federal and state prison populations has affected racial
and ethnic minorities to a greater extent than others. In 1930, 77 percent
of the people admitted to U.S. prisons were white, 22 percent were African
American and one percent were other racial and ethnic minorities.5 That
ratio was virtually reversed by 2000, with African Americans and Latinos
accounting for 62.6 percent of all federal and state prisoners.6 In
Pennsylvania, racial and ethnic minorities account for 66 percent of the state
prison population but only 12 percent of the Commonwealth’s population.7
Pennsylvania ranks sixth highest in the nation in the racial disproportionality
of its rate of incarceration, with an incarceration ratio of 18.4 African
American citizens for every one white citizen per 100,000 population.8
Social scientists disagree about the sources of such a disparity or
overrepresentation—whether it is due to disproportionate involvement in
criminal offenses or to criminal justice system biases.9 The results of
numerous studies of race differences in sentencing outcomes have been
mixed, with many studies drawing criticism for their failure to control

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

adequately for legally relevant variables such as seriousness of the offense
and prior criminal record.10
More study on the basis for such disparities is needed. The studies aside,
however, there is clearly a perception, particularly in minority communities,
that sentencing in Pennsylvania is not unbiased and evenhanded. The
statistics cited above, as well as people’s personal experiences with the
system, support this perception. As described in more detail later in this
chapter, several witnesses testifying before the Committee during its public
hearings expressed strong concerns about disparate levels of incarceration,
particularly between African American and white defendants. Several
witnesses testified, as well, to the devastating effect that the high rate of
incarceration of African American defendants has on African American
families and communities.

Focus of Inquiry
The Committee sought to undertake a comprehensive examination of whether
racial, ethnic or gender disparities in sentencing exist in the Commonwealth.
The Committee also sought to determine whether any such disparity was
the product of bias based on race, ethnicity, or gender, or whether it instead
reflected the reliance of courts and other decision-makers (particularly
prosecutors) on factors that are considered appropriate in sentencing, such as
seriousness of offense of conviction and prior criminal record. The Committee
based its findings primarily upon a statistical analysis of the most recent
sentencing data collected by the Pennsylvania Commission on Sentencing
(PCS). The analysis (Kramer/Ulmer study) was conducted by John H. Kramer
and Jeffrey T. Ulmer, professors of Sociology and Crime, Law and Justice
at The Pennsylvania State University. In addition to the study, the Committee
analyzed testimony from the six public hearings and also examined other
literature on the issue, including studies by other state task forces.

Prior Research on Sentencing Disparities in Pennsylvania
The Kramer/Ulmer study builds upon previous research by Professors
Kramer and Ulmer, and other of their colleagues, on race and gender
disparity in sentencing in Pennsylvania. That earlier research found, among
other things, that racial and gender disparity existed statewide, although
the amount and nature varied widely throughout the Commonwealth, and
that the precise effects of race and gender on sentencing depended upon the
interaction among those two factors and the defendant’s age.11 The present
study was undertaken both to update the prior research and to analyze

127

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

sentences that reflect major revisions to the sentencing guidelines in 1994
and 1997,12 as well as the major legislation on crime and criminal justice
that resulted from a special legislative session in 1995. In addition, the
study includes an analysis of the sentencing of Latino defendants, unlike all
but one of the prior studies.13

128

The present study analyzed the 1997–2000 data for sentences under the
1997 Pennsylvania sentencing guidelines, focusing on possible disparities in
sentencing based upon defendant characteristics of race, ethnicity, and
gender, both singly and interactively. That is, in addition to studying the
main effects of a particular defendant characteristic (i.e., race), Kramer and
Ulmer also analyzed the interactive effects of race or ethnicity and gender,
as well as the interactive effects of race/ethnicity, gender, and age. The study
examined overall disparity in sentencing (i.e., the decision whether to
incarcerate and the length of incarceration); disparities in departures from
the guidelines; disparities in sentencing in Philadelphia County and in
Allegheny County; relationships between socio-demographic characteristics
of counties and disparities in sentencing; and changes in patterns of
disparity in sentencing between the early and late 1990s. This chapter
focuses primarily on the first and last sets of findings: overall disparity in
sentencing and changes in patterns of disparity in sentencing.

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

SYNOPSIS OF FINDINGS
After controlling for legally prescribed factors and
mode of conviction, the study found that the defendant
status characteristics of race, ethnicity, gender, and
age definitely affect sentencing outcomes of all kinds.
—Kramer/Ulmer

Among the findings of the Kramer/Ulmer study were the following:
1. Courts rely primarily on the legally prescribed factors, i.e., the type and
seriousness of offense and the defendant’s prior criminal record, in
determining sentences for defendants. (These may, however, reflect
persistent structural inequalities.)
2. In sentencing, the mode of conviction matters. Defendants who were
convicted following a trial—especially a jury trial—were substantially
more likely to be incarcerated and received substantially longer prison
terms than those who entered guilty pleas.
3. Nevertheless, after controlling for legally prescribed factors and mode
of conviction, the study found that the defendant status characteristics
of race, ethnicity, gender, and age definitely affect sentencing outcomes
of all kinds.
•

Gender is the most consistently influential variable among defendant
status characteristics, especially when analyzed in interaction with
race, ethnicity, and age. Women are both less likely to be
incarcerated than men and to receive shorter sentences than men,
with young African American and young white females receiving the
most lenient sentencing outcomes. The gender disparities that
appeared are not necessarily unwarranted, however, as gender might
correlate with other factors that may be viewed as legitimate
considerations in sentencing, such as family responsibilities and role
in the offense. (Information about such considerations was not
available.)

•

Race alone has a minor effect on sentencing disparity, but in
combination with gender and age shows more complex effects.
Specifically, the role of race in sentencing outcomes depends upon
gender and, to a lesser extent, age. Overall, African Americans are
slightly more likely to be incarcerated than whites and received

129

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

slightly longer sentences. African Americans had a 1.2 percent
greater probability of incarceration and received sentences that were,
on average, 1.3 months longer than whites. When the researchers
studied the interactive effects of race, ethnicity, gender, and age,
however, they found that the effects on sentencing differed
“dramatically” by gender and by age. Specifically, young African
American males, ages 18–29, had a 4.8 percent greater probability
of incarceration and received sentences that were, on average,
4.3 months longer than whites. Older African American males, ages
30 and over, had a 4.1 percent greater probability of incarceration
and received sentences that were, on average, 3 months longer than
whites. In contrast, young African American females were sentenced
more leniently than all male groups, with incarceration odds less
than half of those of the reference group of young white males.
The terms of incarceration for young African American females, on
average, were 15 months shorter than those of the reference group.

130

Older Latino males continue to be the most severely
punished category of defendants and young Latino
males continue to be the second most severely
punished.
—Professors John Kramer and Jeffrey Ulmer

•

Ethnicity—specifically, Latino ethnicity—also makes a difference
in sentencing, although, again, the effects differ as ethnicity interacts
with gender and age. Overall, Latino defendants were more likely
to be incarcerated and received slightly longer sentences than
non-Latino defendants. Latinos had a 5.9 percent greater probability
of incarceration and received sentences that were, on average, 5.3
months longer than whites. However, when ethnicity is differentiated
by age and gender, the differences are more pronounced. Young
Latino males, ages 18–29, had a 7.6 percent greater probability of
incarceration and received sentences that were, on average,
6.7 months longer than whites. Older Latino males, age 30 and over,
had a 9.7 percent greater probability of incarceration and received
sentences that were, on average, 8.3 months longer than whites. Just
as with African American females, Latina females were sentenced
more leniently than Latino males. Young Latina females had
incarceration odds of 11.3 percent lesser probability than 50-50,

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

lower than all white/other defendants, and their terms of
incarceration were, on average, 9.9. months shorter than
whites/others. Older Latina females were sentenced slightly more
harshly than their younger counterparts, with incarceration
odds of 7.8 percent lesser probability than 50-50, and their terms
of incarceration were, on average, 6.9 months shorter than
whites/others.
4. The patterns of disparity in sentencing have changed over time. The
overall trend is toward less disparity, although the experience of African
American males is an exception. Specifically:
•

The trend is toward decreasing disparity for Latino defendants,
although older Latino males continue to be the most severely
punished category of defendants and young Latino males continue to
be the second most severely punished. Sentencing patterns for Latina
women, in contrast, have “completely reversed,”14 with Latina
women now receiving more lenient sentences than the reference
group, as opposed to the more severe outcomes they received in the
early 1990s.

•

The trends are markedly different for African American men and
African American women. African American men have experienced
a moderate increase in sentencing disadvantage, while African
American women have gained a relative sentencing advantage
compared to other groups. Although African American defendants
are less disadvantaged than Latino defendants in sentencing
decisions, the disparities between African American and white
defendants have grown. African American men receive somewhat
more severe outcomes than white men, while young African
American women are the most leniently sentenced category
of defendants.

131

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

RESEARCH METHODOLOGY—
KRAMER/ULMER STUDY

132

The study analyzed sentencing data from 1997–2000 made available
through the general release policy of the PCS, using only cases sentenced
under the 1997 Pennsylvania Sentencing Guidelines. The researchers
focused on two key decisions by the sentencing court: 1) incarceration
decision (“in/out”); and 2) length of incarceration (in months).15 The PCS
data is particularly detailed and includes, among other data, information
on legally prescribed variables (PCS offense gravity score, PCS prior record
score, and type of offense); defendant status characteristic variables
(age, race/ethnicity, gender); and mode of conviction.
In their multivariate analyses, Kramer and Ulmer first examined the main
(or direct) effects of each of the defendant status characteristics of race,
ethnicity, and gender on incarceration and length, along with the effects of
all of the other control variables. They then examined the interactive effects
on the same sets of outcomes, looking first to race, ethnicity, and gender,
and second to race, ethnicity, gender, and age.
The researchers applied the following methods of analysis:
First, they examined the descriptive statistics for the variables to be used in
the analysis (i.e., sentencing outcome variables, defendant characteristic
variables and control variables). The results show the number of defendants
in each race, ethnicity, and gender category (i.e., number of white, African
American, Latino, male, and female defendants) and in each
race/ethnicity/gender/age category (i.e., number of young African American
males, older white females, etc.), as well as the proportions incarcerated
and mean sentence lengths for each race (African American/non-African
American), ethnic (Latino/non-Latino), and gender (male/female) group.16
Next, the researchers conducted multivariate analyses of the data, by which
they analyzed the effects of race, ethnicity, gender, and age (singly and in
combination) while controlling for other variables, which included legally
prescribed factors (offense type and severity, prior record), case processing
variables (guilty plea or trial conviction), court size (medium or large), and
sentencing year. The purpose of the multivariate analyses was to examine
the association of race, ethnicity, and gender, in combination with age,

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

aside from any influence those other variables might have; this method
avoided mistaken attribution of any disparities that were found. As
Professors Kramer and Ulmer explain: “These analyses answer the
question, what effects do race, ethnicity, and gender have on sentencing
outcomes above and beyond the influence of other variables?”17
It was determined that this study would not officially control for the
application of a mandatory minimum sentence, although it should be noted
that, when the researchers initially did so, the results did not differ
substantially from those reported here.18 This decision was made because of
the Committee’s concern that controlling for mandatory minimums might
mask the racially disparate effect of the mandatory minimums themselves.
In this regard, at least one public hearing witness suggested that the
mandatory sentences approved by the Pennsylvania legislature were “biased
and unfair.”19 This witness noted that mandatory sentences for drug and
gun crimes disproportionately affect African Americans and that this
disparity combines with inequities at other levels in the criminal justice
system, leading to a prison population that is disproportionately African
American.20
To examine recent trends in sentencing disparity—in other words, the
changes in race, ethnicity, and gender sentencing patterns between the early
and late 1990s—the researchers first ran identical analyses of the data for
the years 1989–1992 for the main effects of defendant characteristics and
the interactive effects of race/ethnicity/gender/age, and then compared those
results with the results for the corresponding analyses of the 1997–2000
data.

133

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

SPECIFIC STUDY FINDINGS
DESCRIPTIVE STATISTICS

134

The study first sets forth the statistics for all included variables, such as
sentencing outcomes, legally prescribed variables, and defendant
characteristics. These statistics were prepared for use in the subsequent
analyses and do not specifically address the questions on which the
Committee was focused (i.e., the existence and extent of unwarranted race,
ethnic and gender disparity in sentencing outcomes, and trends in
sentencing disparity). The statistics regarding the number of defendants in
each race, ethnicity and gender category revealed the following: there were
128,557 white defendants (about 64 percent); 58,541 African American
defendants (29 percent); 12,732 Latino defendants (6.3 percent); and
1,330 defendants of other races or ethnicities (0.7 percent). The defendants
included 170,396 men (83 percent) and 34,658 women (17 percent).

EFFECTS OF RACE, ETHNICITY, GENDER AND AGE
Main Effects

Controlling for the influence of variables other than the defendant
characteristics of race, ethnicity, gender and age, the researchers then
examined the main effects of each defendant characteristic—that is, the
effect of race, ethnicity, or gender alone on sentencing outcomes. They
found differences based on race, ethnicity, and gender, although those were
not the strongest influences on incarceration and sentence length. The
strongest influences were, in descending order: offense gravity, prior record,
offense type, conviction by jury trial, and being sentenced in a large urban
court.
The effects of race, ethnicity, and gender were statistically significant,
although smaller than the effects of the legally prescribed variables. African
Americans and Latinos were sentenced somewhat more harshly than
whites, while men were sentenced more harshly than women. Specifically,
the results showed a “statistically significant but substantively small
difference” between the sentencing outcomes of African Americans and
whites; African Americans had a 1.2 percent greater probability of
incarceration and received sentences that were, on average, 1.3 months
longer. The differences for Latinos were greater, with 1.3 Latinos
incarcerated for every one white, and the average length of incarceration
for Latinos 5.3 months longer than for whites. Women were incarcerated

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

less frequently and for shorter periods than men: their incarceration odds
were about half those of men, and they were sentenced, on average, to
about 14 months less than men.
The main effects of the defendant characteristics of race, ethnicity and
gender alone are set forth below in Table 1.
TABLE 1
Main effects of race, gender and age @
Models:

Constant

Incarceration

Incarceration Length
(in months)

Odds

Unstandardized (standardized
effect
effect)

(probability
difference
from 50-50)

—

702.6

(—)

90.5

(1.56)**

Selection bias correction
factor
Offense gravity score

1.32

(6.9 percent)**

7.3

(1.21)**

Prior record score

1.32

(6.9 percent)**

6.1

(.89)**

Offense types (other offenses=reference category):
Homicide

.94

(-1.5 percent)

43.8

(.21)**

Rape

1.07

(1.7 percent)

16.3

(.05)**

IDSI

.78

(-6.2 percent)

11.2

(.03)**

Robbery

1.42

(8.7 percent)**

6.3

(.07)**

Weapons

.30

(-26.9 percent)**

-24.8

(-.20)**

Aggravated assault

.78

(-6.2 percent)**

-5.2

(-.06)**

Simple assault

.27

(-28.7 percent)**

-27.3

(-.62)**

Arson

.45

(-19.0 percent)**

-14.0

(-.05)**

Burglary

.65

(-10.6 percent)**

-8.5

(-.12)**

Criminal trespassing

.44

(-19.4 percent)**

-16.2

(-.17)**

Theft

.31

(-26.3 percent)**

-24.1

(-.73)**

Forgery

.40

(-21.4 percent)**

-18.8

(-.21)**

Drug felony

.45

(-19.0 percent)**

-15.7

(-.38)**

Drug misdemeanor

.16

(-36.2 percent)**

-35.6

(-.81)**

135

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

Models:

Incarceration

Incarceration Length
(in months)

Odds

Unstandardized (standardized
effect
effect)

(probability
difference
from 50-50)

Mode of conviction:

136

By bench trial

1.32

(6.9 percent)**

7.7

(.10)**

By jury trial

2.11

(17.8 percent)**

19.3

(.19)**

By negotiated guilty plea

.79

(-5.9 percent)**

-4.6

(-.16)**

Female Defendant

.51

(-16.2 percent)**

-13.7

(-.41)**

African American Defendant

1.05

(1.2 percent)**

1.3

(.05)**

Latino Defendant

1.27

(5.9 percent)**

5.3

(.10)**

Defendant age

1.00

.1

(.05)**

( )**

Court size (medium = ref. cat.):
Small court

.99

(-0.3 percent)

Large court

.50

(-16.7 percent)**

-13.5

(-.45)**

Sentencing year

.98

(-0.5 percent)**

-.3

(-.02)**

Chi-squared

-.0

36,347 (p<.0001)

F

10,560 (p<.0001)

Model accurate prediction rate 75 percent
R-squared
N

.62
173,338

173,337

@ Reference category is white/other defendants
* statistically significant at .01 or less, and ** statistically significant at .001 or less

(-.00)

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

Interactive effects of race, ethnicity and gender

Based upon earlier research showing that the effects of race, ethnicity, and
gender were complicated and depended upon the interactions between race
and gender or ethnicity and gender, the study then examined how the effect
of race and ethnicity on sentencing outcomes differed for men and women.
To do so, the researchers further specified the defendant categories
examined above in order to analyze differences in sentencing outcomes for
defendant subgroups of African American males, African American
females, Latino males and Latina females, as compared to outcomes for
all white/other defendants.
The main finding here was that the effects of race and ethnicity on
sentencing differed markedly for men and women. African American and
Latino men tended to be sentenced more severely than the reference group
of white/other defendants, while African American and Latina women
tended to be sentenced more leniently.
Both African American males and Latino males were more likely to be
incarcerated, and for longer terms, than the reference group. Compared to
whites, the incarceration odds for African American males were 1.22
(a five percent greater probability than 50-50) and their average sentences
were four months longer. Latino males were even more likely to be
incarcerated (1.45 Latino males for each white/other defendant, a
9.2 percent greater probability than 50-50) and for even longer terms
(8.1 months longer than whites/others).
African American females and Latina females, on the other hand,
were both less likely than whites to be incarcerated and, if incarcerated,
were likely to receive shorter sentences. African American females’
incarceration odds were 54 percent of white/other defendants (a probability
14.9 percent less than 50-50) and their average sentences were 12.2 months
shorter than those of white/other defendants. The odds for incarceration
of Latina females, at 70 percent, or an 8.8 percent lesser probability than
50-50, were also lower than the white/other defendants. Latina females
were sentenced, on the average, to terms about eight months shorter than
those of white/other defendants.
The interactive effects of race, ethnicity, and gender are set forth below in
Table 2.

137

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

TABLE 2
Interactive effects of race, ethnicity and gender @
Models:

Incarceration

Incarceration Length
(in months)

Odds

Unstandardized
effect

(probability
difference
from 50-50)

(standardized
effect)

The same control variables as in the main effects tables are included but not shown

138

African American male
defendant
African American female
defendant
Latino male defendant
Latina female defendant
Chi-squared

1.22

(5.0 percent)**

4.2

(.14)**

.54

(-14.9 percent)**

-12.2

(-.21)**

1.45

(9.2 percent)**

8.1

(.14)**

.70

(-8.8 percent)**

-7.8

(-0.50)**

35,132 (p<.0001)

F
Model accurate prediction
rate

10,319 (p<.0001)
75 percent

R-squared
N

.63
173,338

173,337

@ Reference category is all white/other defendants
* statistically significant at .01 or less, and ** statistically significant at .001 or less

Interactive effects of race, ethnicity, gender and age

Next, the researchers examined the interactive effects of race, ethnicity,
gender, and age by analyzing the effect on sentencing outcomes of those
characteristics in combination. That is, they compared outcomes for the
reference category of white males ages 18–29 with outcomes for 11
remaining categories of defendants: African American and Latino males
ages 18–29; African American, Latina and white females ages 18–29; and,
separately, each of the same groups ages 30 and above.
In this analysis, the effects of the legally prescribed variables largely stayed
the same as in the earlier analysis for the main effects of race, ethnicity, and
gender. Again, the strongest determinants of incarceration and sentence
length did not include a defendant’s race, ethnicity, or gender, but instead
were, in descending order: offense gravity score, prior record, offense type,

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

jury trial conviction, and being sentenced in a large urban court
(Philadelphia or Allegheny County).
Nevertheless, the combined effects of race, ethnicity, gender, and age did
make a difference in sentencing outcomes. Here the primary finding by the
researchers was that “Not only do the effects of race and ethnicity on
sentencing vary dramatically by gender, but also by age.”21 All male
categories were sentenced more severely than the reference group of young
white males, with older Latino males being sentenced most harshly. The
odds of incarceration for older Latino males were one and one-half times
those of young white males, and their sentences averaged about eight
months longer. Young Latino males and young African American males
were next in sentence severity, followed by older African American males
and older white males, whose sentencing outcomes were about equal.
In contrast, all groups of female defendants were sentenced more leniently
than all male groups, with young African American females being
sentenced the most leniently. At 45 percent (a 19 percent lesser probability
than 50-50), their odds of incarceration were less than half those of the
reference group of young white males, and their terms of incarceration on
average were 15 months shorter than those of the reference group.
Specifically, then, with respect to differences in sentencing outcomes, from
the most to the least severe outcomes, the groups ranked as follows:
1) older Latino males; 2) young Latino males; 3) young African American
males; 4) older white males; 5) older African American males; 6) young
white males; 7) older Latina females; 8) older white females; 9) young
Latina females; 10) older African American females; 11) young white
females; and 12) young African American females.
The interactive effects of race, ethnicity, gender, and age are set forth below
in Table 3.

139

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

TABLE 3
Effects for Race/Ethnicity/Gender/Age Categories @
Models:

Constant

140

Incarceration

Incarceration Length
(in months)

Odds

Unstandardized
effect

(probability
difference from
50˚50)

—

775.4

Selection bias correction
factor

(standardized
effect)
(—)

90.3

(1.55)**

Offense gravity score

1.32

(6.9 percent)**

7.2

(1.21)**

Prior record score

1.32

(6.9 percent)**

6.1

(.88)**

Offense types (other offenses=reference category):
Homicide

.96

(-1.0 percent)

44.0

(.21)**

Rape

.92

(-2.1 percent)

17.3

(.05)**

IDSI

1.23

(5.2 percent)

11.3

(.03)**

Robbery

1.43

(8.8 percent)**

9.0

(.11)**

Weapons

.29 (-27.5 percent)**

-26.3

(-.29)**

Aggravated assault

.80

(-5.6 percent)**

-4.9

(-.05)**

Simple assault

.27 (-28.7 percent)**

-27.2

(-.62)**

Arson

.45 (-19.0 percent)**

-13.9

(-.05)**

Burglary

.67

(-9.9 percent)**

-7.8

(-.11)**

Criminal trespassing

.44 (-19.4 percent)**

-15.9

(-.17)**

Theft

.31 (-26.3 percent)**

-23.7

(-.72)**

Forgery

.41 (-20.9 percent)**

-18.4

(-.20)**

Drug felony

.45 (-19.0 percent)**

-15.8

(-.39)**

Drug misdemeanor

.16 (-36.2 percent)**

-35.4

(-.80)**

Mode of conviction:
By bench trial

1.32

(6.9 percent)**

7.7

(.10)**

By jury trial

2.10

(17.7 percent)**

19.3

(.19)**

By negotiated guilty plea

.80

(-5.6 percent)**

-4.5

(-.16)**

Young white female
defendant

.50 (-16.7 percent)**

-13.7

(-.22)**

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

Models:
Older white female
defendant

Incarceration

Incarceration Length
(in months)

.67

(-9.9 percent)**

-8.5

(-.17)**

Older white male
defendant

1.19

(4.3 percent)**

3.2

(.11)**

Young African
American male
defendant

1.21

(4.8 percent)**

4.3

(.11)**

.45 (-19.0 percent)**

-15.0

(-.16)**

(4.1 percent)**

3.0

(.07)**

.57 (-13.7 percent)**

-11.1

(-.15)**

(7.6 percent)**

6.7

(.09)**

.63 (-11.3 percent)**

-9.9

(-.05)**

Young African
American female
defendant
Older African American
male defendant
Older African American
female defendant
Young Latino male
defendant
Young Latina female
defendant
Older Latino male
defendant
Older Latina female
defendant

1.18

1.36

1.48

(9.7 percent)**

8.3

(.09)**

.73

(-7.8 percent)**

-6.9

(-.03)**

Court size (medium=ref. cat.):
Small court

.99

Large court

.50 (-16.7 percent)**

Sentencing year

.98

Chi-squared

(-0.3 percent)

(-0.5 percent)**

N

(-.45)**

1.1

(.04)**

8,662 (p<.0001)
75 percent

R-squared

.62
178,116

(.00)

-13.6

37,491 (p<.0001)

F
Model accurate prediction
rate

.0

178,115

@ Reference category is young white male defendants
* statistically significant at .01 or less, and ** statistically significant at .001 or less

141

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

CHANGES IN RACE, ETHNICITY, AND
GENDER SENTENCING PATTERNS
BETWEEN THE EARLY AND LATE 1990S

142

This part of the study examined changes in sentencing patterns between the
early and late 1990s, a period during which, as noted above, the sentencing
guidelines underwent two revisions and the Legislature enacted major crime
legislation. The researchers ran identical analyses of data for the years
1989–1992 and compared the results with the main analyses reported in
Tables 5 and 7 to show direct and interactive effects, respectively, of race,
ethnicity, and gender. While disparities appeared in the results for both
time periods, the extent of the disparities differed by group for the
two time periods.
Changes in Direct Effects of Race, Ethnicity,
and Gender

Overall, with respect to the “in/out” decision, the incarceration odds for
African Americans did not differ significantly in comparison to those for
whites for the two periods. However, the disparity in incarceration odds
between Latinos and whites decreased somewhat between the two periods,
and the effect of gender decreased modestly.
Slightly different results appeared with sentence length. The African
American/white disparity grew moderately, with African Americans being
given sentences that were, on average, 1.28 months longer in 1997–2000
than in 1989–1992. Average sentences in the later period were 2.6 months
shorter for Latinos and six months shorter for women, which decreased the
Latino/white disparity and increased the male/female disparity.
The results of the direct effects comparisons are presented in Table 4 set
forth below.
TABLE 4
Differences in the direct effects of race, ethnicity, gender, and age
on incarceration odds and length, 1989–1992 and 1997–2000
Incarceration

1997–2000 odds

1989–1992 odds

Difference

African American

1.05

1.04

Latino

1.27

2.13

-.86 ***

.51

.58

-.07 ***

Gender (female = 1)

.01

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

TABLE 4(a)
Length

1997–2000 length
effect (in months)

1989–1992 length
effect (in months)

Difference

African American

1.33

.04

1.28 ***

Latino

5.25

7.85

-2.61 ***

-13.69

-7.74

-5.96 ***

Gender (female = 1)

*** Indicates that the difference between the effects in the two time periods is
statistically significant at p < .001.

Changes in interactive effects of race, ethnicity,
gender, and age

The results, in the following Table 5, present a complicated picture.
Overall, the comparison shows that each category’s differences in
incarceration and length of sentence over time were statistically significant,
although the direction of change differed for the different categories of
defendants.

Incarceration odds
Five groups faced significantly greater odds of incarceration in 1997–2000
than in 1989–1992, while six groups’ odds were significantly lower in the
later period. The groups facing greater odds in 1997–2000 were young
(ages 18 to 29) African American males, older (age 30 and above) African
American males, older white males, older white females, and older African
American females. The groups facing lower odds were young and older
Latino males, young white females, young African American females, and
young and older Latina females.

Latino groups
Especially noteworthy are the differences in incarceration patterns for
Latino groups as compared to the reference group of young white males.
While disparities persisted, overall the trend was one of decreasing
disparity. Latina females, both young and older, went from a position of
considerable relative disadvantage (incarceration odds more than two times
greater than those of young white males in 1989–1992) to a position of
advantage (odds of -1.4 for young and -1.55 for older Latina females in
1997–2000). Latino males continued in a position of relative disadvantage,
although the disparity was much less pronounced in the later period than in
the earlier; compared to the reference group, odds for older Latino males
went from 2.75 to 1.5 times greater, while for young Latino males odds
went from 1.9 to 1.3 times greater. With respect to sentence length, the
results for Latina females again showed a trend toward improvement in
position from one of relative disadvantage to one of advantage, with both

143

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

young and older Latina females receiving dramatically shorter sentences, by
about 19 months, in 1997–2000 than in 1989–1992. While young Latino
males did not experience a significant change in sentence length, sentences
for older Latino males were about a month shorter in the later period than
in the earlier period. It should be noted, however, that in both periods, both
young and older Latino males each received substantially longer sentences
than young white males.

144

Older white males, older African American males, young African
American males
Three other groups—older white males, older African American males and
young African American males—experienced an increased disadvantage in
incarceration odds compared to young white males. Older white females
and older African American females faced increased odds of incarceration
in 1997–2000, but continued in a position of relative advantage, older
white females going from 0.42 to 0.66 odds and older African American
females going from 0.5 to 0.57 odds. Young white females and young
African American females, on the other hand, increased their positions of
relative advantage, young white females going from 0.56 to 0.5 odds and
young African American females going from 0.62 to 0.45 odds.
TABLE 5
Differences in the interactive effects of race, ethnicity, gender, and
age on incarceration odds and length, 1989–1992 and 1997–2000
Incarceration

1997–2000 odds

1989–1992 odds

Difference

Young African American males

1.19

1.06

0.13***

Young Latino males

1.34

1.86

-0.52***

Older African American males

1.17

0.77

0.40***

Older Latino males

1.48

2.75

-1.27***

Older white males

1.18

0.77

0.41***

Young white females

0.50

0.56

-0.06***

Older white females

0.66

0.42

0.24***

Young African American
females

0.45

0.62

-0.17***

Older African American
females

0.57

0.50

0.07***

Young Latina females

0.62

2.01

-1.39***

Older Latina females

0.71

2.26

-1.55***

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

Sentence length
Young African American males, older African American males, older
white males, and older white females all received significantly longer
sentences in 1997–2000 than in the earlier period, while six groups received
significantly shorter sentences in the later period: older Latino males, young
white females, young African American females, older African American
females, young Latina females, and older Latina females. Sentence length
for young Latino males did not differ significantly in the two periods.

Older African American males, young African American males and
older white males
The increase in sentence length for older African American males in
1997–2000 was the largest for any group, going from nearly four months
shorter (-3.7) than young white males to nearly three months longer (2.8).
The sentences of young African American males, as compared to the
reference group, went from 0.45 months longer to four months longer,
while the sentences of older white males went from 2.7 months shorter to
3.1 months longer.

Female defendants
Three groups of female defendants received shorter sentences in 1997–2000
than in 1989–1992. Compared to the reference group, young white females
went from 7.95 months shorter to 13.7 months shorter, while young
African American females went from 7.7 months shorter to 15.1 months
shorter and older African American females went from 10 months shorter
to 11.3 months shorter. On the other hand, older white females were
relatively less advantaged in the later period, going from sentences
11.8 months shorter in 1989–1992 to 8.5 months shorter in 1997–2000.

145

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

TABLE 5(a)
Length

146

1997–2000
length effect
(in months)

1989–1992
length effect
(in months)

Difference

Young African American males

3.97

0.45

3.52***

Young Latino males

6.43

6.33

0.1

Older African American males

2.77

-3.67

Older Latino males

8.8

9.9

Older white males

3.1

-2.74

5.84***

Young white males

-13.7

-7.95

-5.75***

Older white females

-8.5

-11.8

3.3***

Young African American females -15.1

-7.7

-7.4***

-10

6.44***
-1.1***

Older African American females

-11.3

Young Latina females

-10.2

8.7

-18.9***

Older Latina females

-7.1

12.1

-19.1***

*** Indicates that the difference between the effects in the two time periods is
statistically significant at p < .001.

-1.3***

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

LIMITATIONS ON FINDINGS
Before stating conclusions, it is important to point out a number of
limitations in the findings, primarily from information that was not
available and therefore could not be taken into account, but that might
have affected sentencing decisions and, furthermore, might correlate
with race, ethnicity, and gender. It is also important to emphasize the
complicated nature of the sentencing decision and the participation in the
sentencing process of multiple actors, in addition to the court that makes
the final decisions on incarceration and sentence length.
First, a number of facts were not available in the data reported by the PCS,
either because the PCS does not collect such information or because the
courts do not complete the PCS information sheets in full. The missing
information that might have affected sentencing decisions includes charging
decisions (i.e., what offenses to charge and whether to file a motion for
application of a mandatory minimum sentence); type of counsel (i.e.,
private, court-appointed, public defender); and personal information about
the offender such as employment status, socioeconomic status, role in the
offense and family status and responsibilities. These facts might correlate
with the defendant’s race, ethnicity, or gender. In addition, access to similar
information concerning victims of the offenses was not available, which
again might implicate racial, ethnic, or gender bias.22
Disparate outcomes are not necessarily the result of intentional
discrimination because bias can “creep into” decision-making in subtle
and complicated ways. For example, the individual decision-maker may be
influenced by unconscious racial, ethnic, or gender bias and stereotyping
despite a sincere desire not to discriminate. (See i.e., Charles R. Lawrence
III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 Stan. L. Rev. 317 (1987). Moreover, patterns of disparity also
may result from institutional practices that have become so familiar and
entrenched that their differential impact on groups is not noticed. (See i.e.,
Ian F. Haney López, Institutional Racism: Judicial Conduct and a New
Theory of Racial Discrimination, 109 Yale L.J. 1717 (2000). Whether or
not the patterns are intentional, however, unwarranted disparate outcomes
in sentencing present a serious problem that ought to be further examined
and eliminated.

147

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

148

Further, in interpreting the findings reported here it is important to
recognize the complex nature of the criminal justice process in which
decisions made by various actors at different stages may affect the ultimate
decisions whether to incarcerate and for how long. In particular, it is
important to recognize the key role played by prosecuting attorneys.
Prosecutors make the decisions about which offenses to charge and whether
to seek application of mandatory minimums. In addition, prosecutors’ plea
agreements are, as Professors Kramer and Ulmer point out, “crucial in
determining sentences, as well as the application of sentencing guidelines, in
the overwhelming majority of cases.”23 Therefore, a thorough examination
of unwarranted disparity in sentencing should focus not only on judges, but
also on decisions made by prosecutors.

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

PUBLIC HEARING TESTIMONY
Several of the witnesses who testified at the Committee’s public hearings,
including four members of the state Legislature, focused on the issue of
sentencing disparities in the state criminal justice system.
All of the witnesses who testified before the Committee on this issue
expressed deep concern about the disparity in treatment of minorities in the
state criminal justice system. Alfred Blumstein, professor of urban systems
and operations research at Carnegie Mellon University, testified that in
the past 20 years, the incarceration rate of African Americans in state and
federal prisons has risen from seven to eight times that of whites.24
Blumstein discussed the results of his landmark 1983 study on racial
disproportionality in incarceration, in which he concluded that differential
involvement of the races in arrests (for the types of crimes that lead to
incarceration) accounted for 80 percent of the disproportionality, with the
remaining 20 percent reflecting legitimate factors or discrimination.25 He
indicated that, when he revisited this issue ten years later,26 he found “the
severe racial disproportionality in prison was still with us” and that the
“amount of disproportionality that could be explained by racial differences
in arrest had dropped from 80 percent to 75 percent.”27 He linked the
effect to the large increase in the proportion of drug offenders in prison
populations. “It was this major shift in composition, a smaller percentage
of the more serious offense types where arrest readily accounts for
incarceration, and a massive growth in drug offenders where there is so
much more discretion in response to the offending and where arrest is
a poor indicator of representation in prison.”28 Blumstein also said that his
current examination of this issue preliminarily indicates that the amount of
racial disproportionality that can be explained by arrest “has declined
still further.”29

“If an offender is black or another minority, they are
more likely to be seen as a criminal…more likely to
be stopped and searched, arrested, and charged…
more likely to be prosecuted and face a harsher
charge in court, more likely to be refused bail…
more likely to receive a longer sentence than a white
person receives…
—State Representative Ronald Waters

149

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

Other witnesses emphasized that the unfair treatment of minorities is not
confined to the sentencing phase but occurs at all stages of the criminal
justice process, beginning with the initial stop by police and continuing
through incarceration. State Representative Ronald Waters, of Philadelphia,
summed up the situation:

150

“If an offender is black or another minority, they are more likely
to be seen as a criminal. They are more likely to be stopped and
searched, arrested, and charged rather than just being
cautioned. They are more likely to be prosecuted and face a
harsher charge in court, more likely to be refused bail.
Minorities are more likely to go to prison than to get a
community service sentence, more likely to receive a longer
sentence than a white person receives convicted of the same
crime. They are more likely to be subjected to the racial abuse
of discrimination by prison officers and other inmates.”30
Another witness traced the racial disparity in sentencing to the imposition
of mandatory jail sentences for crimes overwhelmingly committed by
minorities. Malik Aziz, executive director of Ex-Offenders, Inc. in
Philadelphia, stated that, “Sentencing becomes biased and unfair when the
courts know the make-up of a certain crime is almost the same 90 percent
of the time on these crimes, and the legislators know that make-up as
well.”31 He cited “drug and gun-related crimes” as examples of those
offenses for which mandatory sentences are imposed and for which many
African American inmates are incarcerated.32
The Reverend Leonard Smalls, former chaplain at the Graterford State
Correction Institution and past president of the Pennsylvania Prison
Chaplains Association, testified to the devastating impact incarceration has
upon the minority community. “If you take these percentages of black
males…who range between the ages of 18 and 36, out of the community
and lock them up for five years, you surely cripple the future of family life,
you cripple family structures, you cripple economic development in that
particular community, you cripple social behavior and you obliterate the
possibility of community stabilization in the next 10 years.”33
Alternatives to incarceration and meaningful rehabilitation programs in
prison were cited by several witnesses as necessary to prevent recidivism.34
Smalls testified that the typical profile of a minority prison inmate is an

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

individual with poor reading and math skills and “unsal[e]able job skills”
who was unemployed at the time of his arrest.35 He indicated that such a
person is released from prison with the same deficits and with “no possible
way of making a successful re-entry into the community.”36
Finally, several witnesses urged that efforts be made to stop the practice of
racial profiling whereby racial and ethnic minorities are singled out for
prosecution.37 Witnesses recommended the implementation of “clearly
defined standards for dealing with prosecutorial abuses.”38 Indeed, State
Representative Harold James, of Philadelphia, identified several bills he has
introduced in the Pennsylvania Legislature to address the issue of racial
profiling and prosecutorial misconduct.39

151

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

OTHER TASK FORCE FINDINGS

152

The Committee reviewed many of the reports prepared by other state task
forces on the issue of racial and ethnic disparities in the criminal justice
system. Two remarkably consistent themes emerged from the review. First,
there was a deep-seated perception among minorities that bias is the cause
of overrepresentation of minorities in our prisons. Second, the reports
found that discrimination occurs at all stages of the criminal process, from
initial arrest through bail decisions, charging decisions, plea bargaining,
sentencing, and treatment during incarceration. A summary of some
findings of the reports follows.
CALIFORNIA

The Final Report of the California Judicial Council Advisory Committee
on Racial and Ethnic Bias in the Courts was filed in January 1997. The
committee devoted one chapter to sentencing issues based upon a finding of
“a persistent public concern that subtle racial and ethnic biases play a part
in sentencing decisions.”40 The overrepresentation of racial and ethnic
minority groups—especially African American—was cited as the major
reason for the public concern. As one cause of racial disproportionality in
prisons, the committee pointed to the “uneven application of the nation’s
and the state’s drug laws” that has “disproportionately affected African
American and other minorities.”41 Other factors identified by the
committee included poverty, which was called a frequent “companion of
minority status;”42 poor legal representation by overburdened public
defender offices who put pressure on clients to plead guilty; bias in police
conduct; and the abuse of prosecutorial discretion.
In its survey of judges, district attorneys and public defenders, the
committee concluded that a significant number of judges and district
attorneys could not disagree with the statement that race and ethnicity has
an effect on plea bargaining, conviction, and sentencing.43
NEW JERSEY

The Final Report of the New Jersey Supreme Court Task Force on Minority
Concerns, issued in June 1992, concluded that minorities are more likely
than non-minorities to be brought into the criminal justice system and are
more likely to remain in the system once they are there.44 To reach its
conclusions about racial and ethnic overrepresentation in the criminal
justice system, the task force relied on the results of a symposium of
nationally known authorities on criminal justice system disparities held at
Rutgers University, a survey of judges and chief court administrators and

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

a series of public hearings. The New Jersey prison profile mirrors the
Pennsylvania profile, with African Americans in both states accounting for
63 percent of the state prison population and 12 percent of overall state
population.45 The task force also found drug abuse arrest figures in the
minority community to be a strong indicator of racial disparity in prisons.
It found, for instance, that African Americans accounted for 52 percent of
the arrests for drug abuse.46 Latinos were 9 percent of New Jersey’s adult
population, but were subject to 12 percent of all arrests for drug abuse.47
By contrast, whites represented 76 percent of the adult population but
accounted for less than 48 percent of the total arrests for drug violations.48
The task force also received considerable testimony at its public hearings
about discriminatory conduct in all aspects of law enforcement, which
contributes to the overrepresentation of minorities in prisons. This
perception was supported by the task force’s survey of opinions of judges
and court managers. In response to two questions regarding prosecutorial
discretion, 30 percent suggested there was some discrimination in the
exercise of prosecutorial discretion.49 Further, 47 percent of the responding
judges and court managers agreed that there were small increments
of discrimination against minorities at each step of the criminal
justice process.50
MICHIGAN

The Michigan Supreme Court Task Force on Racial/Ethnic Issues in the
Courts issued its report in 1989. The task force conducted public hearings
and surveyed judges and attorneys. With regard to sentencing, the task
force concluded that there was a perception of a disparity in prosecutorial
decision-making based upon the race and ethnicity of both the accused and
the victim. The perceptions were based upon the belief that:
•

White male prosecutors exercised broad discretion;

•

Warrants were sometimes issued for inappropriate police searches that
targeted minority populations without probable cause;

•

Minority people were more likely to be charged with a more serious
crime than non-minority people for similar offenses and records;

•

Minority defendants were more likely to be pressured into pleabargaining by the use of multiple charges; and

•

Dispositional alternatives to trial, including plea-bargaining
opportunities, were disparately available to minority and white
defendants.51

153

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

154

Further, the task force concluded that conviction and acquittal rates might
be affected by race or ethnicity of a defendant and/or victim.52 The task
force had reviewed an analysis of Michigan Sentencing Guidelines data,
which concluded that race/ethnicity were not significant factors in
sentencing when the only variables taken into account were severity of
offense and prior record. The report, however, noted the failure of
the analysis to address other factors that might impact upon minority
populations in the system, such as arrest, exercises of prosecutorial
discretion, pretrial detention, and the effect of the race/ethnicity of the
victim and the adjudicator. The task force concluded by requesting that the
sentencing guidelines project analyze the incidence of departures from
guidelines with regard to minority populations.53
CONNECTICUT

The State of Connecticut Judicial Branch Task Force on Minority Fairness
issued its report in April 1996. Sentencing disparity was among the issues
the task force studied. It cited a court disposition study of cases in 1991,
which found that whites were significantly more likely to be placed on
probation while similarly situated minorities were sentenced to
incarceration.54 The task force found no significant differences in length of
prison sentence by race/ethnicity among those sentenced to incarceration
when other factors were controlled.55 Another study cited by the task force,
the Hartford Institute study of 1983–84 felony defendants, however, did
find that Latinos sentenced to incarceration were given longer sentences
than others.56 The task force also reported that a large number of
participants in its public hearings and focus groups perceived that sentences
were biased in favor of whites.57
NEW YORK

The report of The New York State Judicial Commission on Minorities,
issued in 1991, found a “widely held perception that discrimination accounts
for some portion of the overrepresentation of minorities in the criminal
justice system.”58 The report cites 1990 statistics showing that minorities
accounted for more than 80 percent of the prison population in New York
and more than 90 percent in New York City.59 Drawing on research
undertaken by the New York Division of Criminal Justice Services (DCJS) in
1988, the commission found support for the perception that minority
defendants were given harsher sentences than white defendants.60 The study
concluded that significant racial disparity existed in cases when the
defendant had no prior record and was charged with a misdemeanor offense,

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

but not when the defendant was charged with a felony and had some prior
criminal justice involvement.61 The most consistent pattern found by the
DCJS findings, the commission reported, was the imposition of fines for
whites and jail sentences for African Americans and Latinos in cases where
the defendants had similar backgrounds and were charged with similar
misdemeanors.62 The DCJS study also found that when data for the state’s
ten most populated counties were separately analyzed, racial disparities that
were obscured in the statewide data became apparent.63 Overall, the DCJS
study found that the probability of incarceration was generally higher for
minorities than it was, under certain circumstances, for whites.64 In surveys
of judges and litigators, the commission also uncovered additional evidence
of disparate treatment in the sentencing phase of the criminal process. The
surveys asked a series of questions regarding the frequency with which white
defendants receive preferential treatment in the criminal courts. Overall,
44 percent of the judges and litigators answered that white defendants were
“often/very often” less likely to receive a prison sentence than African
American defendants.65 Differences of opinion were found to exist among
litigators from different racial/ethnic groups, but a substantial proportion of
each group said they had witnessed biased sentencing “on a regular basis.”66
The surveys also uncovered the perception among the respondents that
minority defendants were afforded a narrower range of dispositional
alternatives.67 The charge of racially biased sentencing was also expressed
repeatedly at the commission’s public hearings.68
OHIO

The Ohio Commission on Racial Fairness produced its report in 1999.
Among the topics studied by the commission was disparate sentencing in
the criminal justice system. The commission conducted personal interviews
and reviewed other reports and statistical data and concluded that, “Many
minorities perceive that Ohio’s criminal justice system discriminates against
them because of their race or minority status.”69 The commission noted
that this perception is “not unique to Ohio, but represents the views of
many minorities throughout the United States.”70 The commission stated
that, while it recognized that racial discrimination did not account for all
differences in treatment of white people and minorities, “a factual basis for
this perception clearly exists.”71 The report noted that African Americans
were arrested, convicted, and sentenced to prison in Ohio almost 10 times
as frequently as whites and that the incarceration ratio of African
Americans to whites was 9.8:1, which was 28 percent higher than the
national average.72 The commission indicated that its efforts to empirically

155

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

156

validate the information obtained from testimony on this topic had been
frustrated by the failure of judges and court administrators to respond to
a request for information, data, and comments that would have enabled the
commission to consider whether race had a critical influence on the
sentencing patterns of Ohio’s trial courts.73 Consequently, the commission
urged the court system to make a commitment to a “process of regular and
ongoing data collection, analysis, and reporting, as well as both agency and
individual accountability to eliminate the excuse of ‘lack of information’
as a convenient shield for those who would hide their inability or
unwillingness to assure equal treatment to all those involved our state’s
criminal justice system.”74
WASHINGTON

The Washington State Minority and Justice Task Force Final Report, issued
in 1990, found that “a large proportion” of district attorneys and public
defense attorneys contacted through a survey “expressed a clear concern
over the treatment of ethnic and racial minorities in the legal system.”75
Further, the task force found that while the majority of both prosecutors
and public defenders indicated that they had not perceived any racial or
ethnic prejudice in their county courts, nearly half of the responding public
defenders expressed the belief that there was bias in Washington courts.
A few prosecutors responded that there were more problems with bias of
jury members than court officials. Several public defenders simply stated
that minorities were not treated the same as whites.76 Further, while the
majority on both sides said racial or ethnic prejudice did not play a role in
the criminal justice system, nearly half of the public defenders felt that bias
did occur in criminal prosecution.77 Examples cited by the respondents
included the belief that “blacks and other minorities are often prosecuted
more harshly and get lesser plea bargains,” and that blacks and other
ethnic minorities “are perceived as more dangerous and get more
severe sentencing.”78

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

APPELLATE REVIEW
Another factor influencing disparities in sentencing is Pennsylvania’s
standard of appellate review of sentencing decisions which is generally
considered more restrained than the practice in other jurisdictions.79
Kevin Reitz, professor of law at the University of Colorado Law School, in
his study of sentencing guideline systems and sentence reviews, describes
the Pennsylvania appellate process in highly critical terms, characterizing its
standards of review as “overdoing appellate restraint” and a product of the
courts’ opting “to play only a de minimis role in the enforcement of the
guidelines.”80 He also notes that “participants in the Pennsylvania system
complain that the appellate courts have virtually abdicated their sentence
review function.”81 The dominant concern with such limited appellate
review, notes Reitz, is “appellate indifference to disparity.” 82

In his study of sentencing guideline systems and
sentence reviews, [Professor Kevin Reitz] describes the
Pennsylvania appellate process in highly critical terms,
characterizing its standards of review as “overdoing
appellate restraint” and a product of the courts’ opting
“to play only a de minimis role in the enforcement
of the guidelines.”
Kramer and Ulmer note that, given the Commonwealth’s severely restricted
appellate review, no common law of sentencing has developed, and
therefore, “The appellate process fails to buttress the key purpose of
sentencing guidelines—to reduce sentencing disparity.”83 Although a higher
standard of substantive appellate review would increase the number of
sentencing appeals, the professors point out that, “Other states with
sentencing guidelines such as Minnesota and Washington have established
higher standards for departure, with no obvious deleterious effect on the
number of appeals.”84 Further, it is their view that such a change would
not result in the high number of appeals seen in the federal system, because
the Pennsylvania guideline system is far simpler than the federal
guidelines system.85

157

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Include programs on the impact of race, ethnicity, and gender bias in
sentencing at judicial training sessions.86

158

2. Include in such judicial training sessions, education on how the use of
specific offender characteristics, such as employment, family
responsibilities, and role in the offense, can potentially contribute to
unwarranted racial, ethnic, and gender disparities in sentencing.87
3. Strengthen the formal standards of accountability to which sentencing
judges are held through adoption of a broader standard of appellate
review for sentencing decisions.
4. Strengthen and expand the collection of data on sentencing decisions.88

TO DISTRICT ATTORNEYS
The Committee recommends that district attorney’s offices:
1. Institute training programs for prosecuting attorneys on the influence of
race, ethnicity, and gender bias on charging and plea bargaining
decisions.89

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

ENDNOTES
············································
1

U.S. Department of Justice, Bureau of Justice Statistics Bulletin, Prisoners in 1983 and Prison and
Jail Inmates at Midyear 2000, 2001.

2

U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics, 2000.

3

U.S. Department of Justice, Bureau of Justice Statistics Bulletin, Prison and Jail Inmates at Midyear 2000.

4

Pennsylvania Department of Corrections Monthly Institutional Profile, August 31, 2002;
Pennsylvania Bureau of Corrections 1981 Annual Statistical Report.

5

U.S. Department of Justice, Bureau of Justice Statistics, Race of Prisoners Admitted to State and
Federal Institutions, 1926–1986, February 1994, p. 14, Table 7.

6

Human Rights Watch, World Report 2002, p. 4.

7

Pennsylvania Department of Corrections, Annual Statistical Report 2000; U.S. Census Bureau, 2000.

8

Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs (May 2000),
Table 5, citing Bureau of Justice Statistics, Correctional Populations in the United States, 1996.

9

John Kramer and Darrell Steffensmeir, Race and Imprisonment Decisions, 34 The Sociology
Quarterly 357 (1993).

10

Id.

11

Findings from previous studies are summarized in Table 1 to the Report Prepared for the
Pennsylvania Supreme Court Committee on Race and Gender Bias by John H. Kramer and Jeffrey
T. Ulmer; Appendix Vol. I [hereinafter Kramer/Ulmer Report]. In addition, Professor Kramer
discussed this research in his oral and writte0n testimony before the Committee at the public
hearing in Pittsburgh on November 29, 2000.

12

204 Pa. Code § 303.1, et seq.

13

The lack of earlier analysis of the sentencing of Latino defendants was due to the small number of
Latino defendants in the data used.

14

See Kramer/Ulmer Report, supra at 22.

15

The study also examined a number of other questions that will not be discussed in detail in this
report. First, it examined disparities in the decision whether to depart from the guidelines (above or
below), using procedures similar to those applied to the in/out and length of incarceration data. The
results for departures “largely parallel[ed]” the results for the other two decisions, and are reported in
the Appendix to the Kramer/Ulmer Report. (See Kramer/Ulmer Report, supra at 10) Second, the study
examined separately disparities in sentencing in Philadelphia County and Allegheny County, the
Commonwealth’s two large urban court systems. Disparities were found in both of these counties,
although the sizes of the disparities, as well as the rank orderings of the race/ethnicity/gender/age
categories for incarceration chances and sentence length differences, showed patterns that were
different from those for the Commonwealth overall. (These findings are reported and discussed at pp.
8–10 and Tables 8 and 9 of the Kramer/Ulmer Report). Third, the study examined whether sociodemographic characteristics of counties (poverty rate, unemployment, percent African American,
percent Latino, violent crime rate, property crime rate) influenced the effects of race, ethnicity, and
gender on sentencing. The researchers found “only three statistically significant, but mostly rather
modest, interaction effects” which indicated that “the greater the Hispanic population in a county, the
less disparity between Hispanic males (younger and older) and young white males” in sentencing. (See
Kramer/Ulmer Report, supra at 10–11.)

16

See Kramer/Ulmer Report, supra at Tables 3 and 4.

17

Id. at 6.

18

Id. at 6, n. 2.

19

Testimony of Malik Aziz, Philadelphia Public Hearing Transcript, p. 228 [hereinafter Aziz Testimony].

20

Id. at 227–232.

21

See Kramer/Ulmer Report, supra at 10–11.

159

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

22

Moreover, evidence from the capital sentencing context suggests a real possibility that the victim’s
status characteristics, such as race, ethnicity, and gender, might affect sentencing outcomes. In a study
of capital sentencing in Philadelphia, for example, David C. Baldus and his colleagues found “strong
race-of-victim effects” on the finding of mitigating circumstances: “When the victim was white, juries
were significantly more likely to reject all mitigation than when the victim was not white.” (See
Chapter 6 of this report on the Death Penalty, describing findings reported in David C. Baldus, et al.,
Racial Discrimination and the Death Penalty in the Post-Furman Era: an Empirical and Legal
Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1998). See also Id. at
1675–1710 (discussing race-of-victim findings). Many earlier studies of capital sentencing patterns
across the country—most notably a major study of racial influences in capital sentencing in Georgia
by Professor Baldus and his colleagues that was discussed by the United States Supreme Court in
McCleskey v. Kemp, 481 U. S. 279, 107 S. Ct. 1756 (1987)—had found that defendants who kill
whites are more likely to receive a death sentence than defendants who kill non-whites. See Randall L.
Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev.
1388, 1396–1400 (discussing earlier Baldus study and several other studies).

23

See Kramer/Ulmer Report, supra at 16, noting that over 95 percent of all sentencing cases are guilty
pleas.

24

Testimony of Professor Alfred Blumstein, Pittsburgh Public Hearing Transcript, p. 201 [hereinafter
Blumstein Testimony].

25

Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations, 73 Journal of Criminal
Law and Criminology 1259–1281 (1983).

26

Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 University of
Colorado Law Review 743 (1993).

27

Blumstein Testimony, supra at 203.

28

Id. at 204.

29

Id.

30

Testimony of State Representative Ronald Waters, of Philadelphia, Harrisburg Public Hearing
Transcript, p. 36.

31

Aziz Testimony, supra at 228.

32

Id. at 227–229.

33

Testimony of the Reverend Leonard Smalls, Philadelphia Public Hearing Transcript, p. 365
[hereinafter Smalls Testimony].

34

Testimony of State Representative LeAnna Washington, Harrisburg Public Hearing Transcript, p.
32–33; Smalls Testimony, supra at 368.

35

Smalls Testimony, supra at 364.

36

Id. at 368.

37

Testimony of State Representative Jewell Williams, Harrisburg Public Hearing Transcript, p. 39
[hereinafter Williams Testimony]; Testimony of State Representative Harold James, Harrisburg
Public Hearing Transcript, p. 41 [hereinafter James Testimony]; Written testimony of State
Representative William R. Robinson, November 29, 2000.

38

Williams Testimony, supra at 39.

39

James Testimony, supra at 41.

40

Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic Bias in
the Courts, p. 174.

41

Id. at 175–176.

42

Id. at 176.

43

Id. at 181–182.

44

New Jersey Supreme Court Task Force on Minority Concerns, Final Report (June 1992), p. 110.

45

Id. at 119–120.

46

Id. at 124.

47

Id. at 125.

160

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

48

Id.

49

Id. at 129–131.

50

Id. at 131–132.

51

Report of Michigan Supreme Court Task Force on Racial/Ethnic Issues in the Courts, p. 9.

52

Id.

53

Id.

54

Report of the State of Connecticut Judicial Branch Task Force on Minority Fairness, p. 38.

55

Id.

56

Id.

57

Id. at 39.

58

Report of the New York State Judicial Commission on Minorities, p. 139.

59

Id.

60

Id. at 162.

61

Id.

62

Id. at 163.

63

Id.

64

Id.

65

Id. at 170.

66

Id.

67

Id. at 171–174.

68

Id. at 170.

69

The Report of the Ohio Commission on Racial Fairness, p. 36.

70

Id.

71

Id.

72

Id. at 37.

73

Id. at 41.

74

Id. at 44.

75

Washington State Minority and Justice Task Force Final Report, p. 151.

76

Id. at 151–152.

77

Id. at 152.

78

Id. at 153.

79

See generally Kevin R. Reitz, Sentencing Guideline Systems and Sentence Appeals: A Comparison of
Federal and State Experiences, 91 Nw. U.L. Rev. 1441, 1471–80 (1997).

80

Id. at 1471.

81

Id., citing Joseph A. Del Sole, Appellate Review in a Sentencing Guidelines Jurisdiction: The
Pennsylvania Experience, 31 Duq. L. Rev. 479 (1993), and Ivan S. DeVoren, Judicial Discretion in
Sentencing—Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, (1988), 62 Temple L. Rev. 729
(1989). Commentators point particularly to three decisions of the Supreme Court of Pennsylvania
as shaping this minimalist view of appellate review: Commonwealth v. Tuladziecki, 513 Pa. 508
(1987), in which the Court interpreted the procedural rules to limit review of discretionary aspects
of sentences and stated that a purpose of the Sentencing Code was to limit “any challenges to the
trial court’s evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases,” Id. at 513; Commonwealth v. Sessoms, 516 Pa. 365, 376–77 (1987), in which
the Court held that courts need only “consider” the guidelines; and Commonwealth v. Devers, 519
Pa. 88 (1988), in which the Court held that the sentencing court was not required to state its
reasons for imposing a sentence, for “Where pre-sentence reports exist, we shall continue to
presume that the sentencing judge was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory factors,” Id. at 101–02.

161

SENTENCING DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM

82

Reitz, supra at 1471.

83

See Kramer/Ulmer Report, supra at 16.

84

Id.

85

Id.; see also Reitz, supra at 1472 (expressing view that Pennsylvania guidelines system is “much
simpler than its federal counterpart”).

86

Kramer and Ulmer suggest in their report that making judges aware of disparity as a focal concern
and addressing the link of race to employment, education and other factors might sensitize judges
to unintended race and gender effects. Training in recognition of bias related to race, ethnicity, and
gender, and in ways to recognize and resist biased decision-making, would help sentencing courts to
realize the egalitarian ideals to which they, and the court system as whole, aspire. See Kramer/Ulmer
Report, supra at 15; see also Jody Armour, Stereotypes and Prejudice: Helping Legal
Decisionmakers Break the Prejudice Habit, 83 Cal. L. Rev. 733 (1995).

87

Under Pennsylvania's sentencing guidelines, courts are given discretion to consider a number of
specific offender characteristics aside from race, ethnicity, and gender. These factors, which include
family responsibilities, employment, and role in the offense, may correlate with some of the
observed disparities in sentencing. Indeed, the problematic nature of these factors has been
recognized by other jurisdictions.

162

For example, the Minnesota Sentencing Commission finds the consideration of employment status
in sentencing to be inappropriate because it would result in racial disparity. See Dale G. Parent,
Structuring Criminal Sentences: The Evolution of Minnesota's Sentencing Guidelines (1988); see
also State v. Carter, 545 N.W.2d 695, 698 (Minn. Ct. App. 1996) (stating that "social factors such
as employment history or educational attainment are not qualifying factors for departure from
guidelines") (citing Minn. Sent. Guidelines II.D.C., d.), rev'd on other grounds, 569 N.W.2d 169
(Minn. 1997). Cf. U.S.S.G. Ch. 5, Part H, intro. cmt. (stating that the guidelines, pursuant to 28
U.S.C. sec. 994(e), incorporate the view that "defendant's education, vocational skills, employment
record, family ties, and responsibilities, and community ties" "are not ordinarily relevant to the
determination of whether a sentence should be outside the applicable guideline range,"
although, unless expressly stated, "this does not mean that the Commission views such factors as
necessarily inappropriate to the determination of a sentence within the applicable guideline range");
U.S.S.G. secs. 5H1.2, 5H1.5, 5H1.6, 5H1.11, and 5H1.12.
Further, as John Kramer noted in his oral testimony at the Pittsburgh public hearing, judges may be
using factors such as a defendant's education level as a "predictor" of dangerousness, without
knowing either the role of education in recidivism or the racial impact of taking education into
account. As a result, he said, "There's an awful lot of flying by the seat of our pants in those
terms." He suggested that judges be informed of the value of such information and the effect of
considering it. See Testimony of John Kramer, Pittsburgh Public Hearing Transcript, pp. 110–112.
88

As discussed in the chapter, the findings with respect to bias in sentencing are limited in part by the
lack of information. Among the data that the researchers were unable to analyze was information
concerning charging decisions, type of counsel, offender information such as employment status,
socioeconomic status, role in the offense and family status and responsibilities, and similar
information concerning the victim of the offense. (In addition, information about type of counsel is
to be collected on the current PCS forms, but in most cases is left blank.) Each factor might
correlate to race, ethnicity, or gender, and future studies of disparities in sentencing would benefit
greatly from the collection and analysis of the relevant information. It is therefore recommended
that efforts be undertaken to improve provision of the currently requested information; and that the
PCS be authorized to collect additional information of the kind suggested above.

89

Judges are not the only actors in the criminal justice system who influence sentencing. In many
respects, prosecutors play as important a role, and in negotiated plea agreements, prosecutors may
be even more important than judges. There is no reason to think that prosecutors are any less
susceptible than judges and other individuals to biases based upon race, ethnicity, and gender,
whether conscious or unconscious. Therefore, it is not enough to focus on judges alone in educating
actors within the criminal justice system on the operation of biases based upon race, ethnicity, and
gender, and the ways to avoid being influenced by those biases.

5

INDIGENT DEFENSE
IN PENNSYLVANIA

164

INTRODUCTION

168

SYNOPSIS OF FINDINGS AND RECOMMENDATIONS

169

RESEARCH METHODOLOGY

173

INDIGENT DEFENSE EXPENDITURES IN PENNSYLVANIA

182

INDIGENT DEFENSE EXPENDITURES IN PENNSYLVANIA
COMPARED WITH SIMILAR STATE SYSTEMS

184

INDIGENT DEFENSE IN PENNSYLVANIA: SPECIFIC FINDINGS

193

RECOMMENDATIONS

194

ENDNOTES

INDIGENT DEFENSE IN PENNSYLVANIA

INTRODUCTION

164

Recognizing the vital importance of legal representation for individuals
accused of crime, the Supreme Court of Pennsylvania, through case law and
court rule, has liberally interpreted the right to counsel. Indeed, in many
respects the right to counsel under Pennsylvania law is greater than the
protection provided under the United States Constitution. The Supreme
Court of Pennsylvania, for example, extends the right to counsel to a
broader range of proceedings than are covered by the U.S. Supreme Court’s
holdings. Likewise, the Supreme Court of Pennsylvania has held that the
right to counsel attaches at the time of arrest, whereas the U.S. Supreme
Court has ruled that the right attaches only at the initiation of formal
adversarial proceedings, such as indictment or other charging document or
arraignment. The Supreme Court of Pennsylvania also has provided
criminal defendants with other procedural rights more expansive than those
guaranteed in the U.S. Constitution, such as the right to a 12-person jury
and a unanimous verdict. Meaningful representation by counsel is essential
if those rights are to be fulfilled.1

Notably, Pennsylvania, South Dakota, and Utah
are the only three states that provide no state funds to
ensure that indigent citizens are afforded adequate
criminal defense services.
—The Spangenberg Group

Despite the expansive procedural rights afforded under law, indigent
criminal defendants in Pennsylvania are not assured of receiving adequate,
effective representation. Notably, Pennsylvania, South Dakota, and Utah
are the only three states that provide no state funds to ensure that indigent
citizens are afforded adequate criminal defense services. Pennsylvania also
does not provide any statewide oversight of indigent defense systems.
The study reported here—the first-ever comprehensive statewide study of
indigent defense services in Pennsylvania—indicates that Pennsylvania
is generally not fulfilling its obligation to provide adequate, independent
defense counsel to indigent persons. Contributing factors include the
Commonwealth’s failure to provide sufficient funding and other resources,
along with a lack of statewide professional standards and oversight. In

INDIGENT DEFENSE IN PENNSYLVANIA

addition, efforts to improve the indigent defense system have been impeded
by the lack of reliable, uniform statewide data collection.
The impact of the deficiencies in indigent defense programs in Pennsylvania
falls disproportionately upon racial and ethnic minorities. As discussed in
greater detail in this report’s chapter on Sentencing Disparities, minority
males are severely overrepresented in the American justice system. In 1991,
African Americans comprised only about 12 percent of the entire U.S.
population2 but comprised 46 percent of the country’s state prison
inmates.3 As one report noted in the early 1990s, nearly one in every four
African American men in the United States between 20–29 years of age
was under the control of the criminal justice system—whether in prison or
jail, on probation, or on parole.4 Currently, in Pennsylvania, racial and
ethnic minorities account for 66 percent of the state prison population but
only 12 percent of the Commonwealth’s population.5
Given these statistics, the deficiencies in indigent defense programs will
disproportionately impact on the lives of minority group members. Public
defenders are the only counsel to which many of the poor, who are
disproportionately members of the communities of color, will have access.
Arguing that a failure to ensure the adequacy of public defender programs
produces a disproportionate impact not only on the poor, but also on racial
minorities, Charles Ogletree, Jesse Climenko Professor of Law, Harvard
University Law School, writes:
“Moreover, failure to provide adequate assistance of counsel to
accused indigents draws a line not only between rich and poor,
but also between white and black. For the first time in our
nation’s history, the number of people who are incarcerated in
jails and prisons surpasses one million.6 Recent reports indicate
that unprecedented numbers of African-Americans, particularly
young males, are involved in the criminal justice system.7 When
discussing the inadequacies of the current system of providing
counsel for the accused poor, one cannot ignore the correlation
between race and poverty. If the criminal justice system deprives
the poor generally of the right to a fair trial, that burden will
fall disproportionately on communities of color because of the
greater incidence of poverty in these communities and, hence,
their greater reliance on public defender services.”8

165

INDIGENT DEFENSE IN PENNSYLVANIA

Focus of Inquiry

166

The Committee identified the indigent criminal defense system as an area of
substantial concern for two major reasons: First, with approximately
80 percent of all criminal defendants in Pennsylvania being represented by
public defenders or court-appointed counsel,9 it was clear that the quality of
indigent defense counsel affects the legitimacy of the system as a whole.
Second, and more specific to its mission, the Committee recognized that
racial minority groups in Pennsylvania are disproportionately represented in
the criminal justice system. It is the Commonwealth’s most vulnerable
citizens, including the poor, minorities, and women, who feel most acutely
the impact of inadequate legal representation.
In the initial stages of its study on indigent defense, the Committee
determined that Pennsylvania provides neither state funding for, nor
statewide oversight of, indigent defense services, and that the Commonwealth
maintains no centralized records of indigent defense expenditures, resources,
caseloads, or office organization. Consequently, the Committee decided
to undertake a comprehensive examination of indigent defense representation
in Pennsylvania. The topics about which information was sought included:
•

The manner in which the various counties provide representation to
indigent defendants;

•

The qualifications and appointment process of attorneys accepting
indigent defense cases;

•

The funds spent on indigent defense;

•

The resources available to public defenders and others representing
indigent defendants;

•

The point in the legal process at which counsel is appointed; and

•

The training and supervision of defense attorneys for indigent defendants.

Sources of Data
In order to conduct a comprehensive examination of this issue, the Committee
commissioned The Spangenberg Group (TSG) to review Pennsylvania’s
indigent defense system. TSG, a nationally recognized research and consulting
group with substantial experience in evaluating the delivery of indigent
defense services, produced an exhaustive report, including findings
and recommendations. The full report can be found in Appendix Vol. I.

INDIGENT DEFENSE IN PENNSYLVANIA

In addition to the Spangenberg inquiry, the Committee also sought
information through a survey that was sent to all county court
administrators and public defender offices in Pennsylvania. Additional
information came from citizens who testified at the Committee’s
public hearings.

Background: Organization of indigent defense system in Pennsylvania
In Pennsylvania, funding for indigent defense is provided at the county
level. By statute, each county is required to appoint a public defender
through its county executive or county commissioners.10 The relevant
statutory authority for the operation of public defender offices is found at
323 PA Code § 1.4-424 and is set forth below:
1. (County) Council shall appoint a Public Defender, learned in the law
and admitted to the practice of law in the Commonwealth, who shall
exercise those powers and duties assigned and/or granted to this office
by law, this charter, or by ordinance;
2. The Public Defender may appoint such number of assistants, including
a first assistant, to assist him in the discharge of his duties. The Public
Defender shall determine the number of assistants who shall perform
on a full-time basis; and
3. The Public Defender shall prepare annual budget requests based on
staffing and compensation levels which support full-time operations to
the extent required, subject to the budgetary approval of Council.
The Public Defender may employ part- time assistants.
As a result of the minimal guidance given to establish the public defender
offices, they vary from county to county.
In addition to public defenders, indigent defendants may be represented by
court-appointed counsel if the public defender has a conflict of interest.
Certain counties, including Philadelphia, also appoint counsel in homicide
cases. The individual county provides funding for all court-appointed
counsel.

167

INDIGENT DEFENSE IN PENNSYLVANIA

SYNOPSIS OF FINDINGS AND
RECOMMENDATIONS

168

Despite the U.S. Supreme Court’s statement in Gideon v. Wainwright,
372 U.S. 335 (1963), that “lawyers in criminal courts are necessities, not
luxuries,” there are serious deficiencies in the criminal justice system in
many counties in Pennsylvania, and the problems they create for indigent
defense are many. Pennsylvania has no mechanism in place to hold
accountable either the lawyers who represent the poor or the county and
judicial officials who administer indigent defense systems. The absence of
guidelines for the appointment of counsel has resulted in minimal quality
control. In addition, the flat fee paid to appointed counsel can be a
disincentive to effective preparation and advocacy; the low compensation
rates create little incentive to develop expertise in criminal defense.
Moreover, the sparse resources available for support services, coupled with
exploding and unmanageable caseloads, allow indigent defense counsel
little time, training, or assistance for conferring with clients in a meaningful
manner, researching relevant case law, reviewing client files, conducting
necessary pre-trial investigations, securing expert assistance or testimony or
otherwise preparing adequately for hearings and trials. Compounding these
deficiencies is the lack of political independence afforded public defenders
whose budgets are controlled by local county politicians.
The Committee recommends that Pennsylvania institute statewide funding
and oversight of the indigent defense system by establishing an independent
Indigent Defense Commission and appropriating state funds for the support
of indigent defense. The Committee further recommends that the Court
develop uniform, binding indigent defense standards and that court
administrators be directed to explore alternative programs that would allow
earlier resolution of cases and diversion of non-violent defendants into
innovative programs outside of the court system. It is also recommended
that chief public defenders play a stronger role in establishing standards for
guiding, training, supervising, and evaluating assistant public defenders.
Public defenders should also engage in greater community outreach and
public education, increase the diversity among their staffs, and develop
mutually beneficial relationships with law schools through programs such as
internships for law students. The Committee also recommends that trial
courts refrain from moving cases through the system too quickly, at the
expense of proper legal defense for indigent persons.

INDIGENT DEFENSE IN PENNSYLVANIA

RESEARCH METHODOLOGY
THE STATEWIDE INDIGENT DEFENSE SURVEYS
Pennsylvania keeps no centralized records of indigent defense expenditures
and caseloads. The Committee, therefore, attempted to gather such
information by designing and distributing two surveys that asked a broad
range of questions related to the delivery of indigent defense services. The
surveys, which were sent to all county public defender offices and to court
administrators in all county Courts of Common Pleas, sought budgetary
and expenditure figures for public defender offices and assigned counsel
programs; information on the compensation of public defenders and assigned
counsel; and specific organizational features of each county’s indigent defense
systems. The texts of the surveys are found in Appendix Vol. I.
Although survey responses were received from 44 of the 67 counties—
42 of 66 public defenders and 50 of 61 court administrators—there was a
great deal of variance in the quality of the data.11 For example, many
respondents provided current detailed information, while others failed to
provide any quantitative information beyond the rates paid to courtappointed counsel or the salaries paid to chief public defenders.
The Committee shared the responses to these surveys with TSG for use in
its study of indigent defense in Pennsylvania. Findings based upon the
survey responses are reported later in this chapter.
Taken as a whole, the survey responses drew profiles of how legal
representation is provided to indigent defendants in Pennsylvania and of
the variations by county. From the responses, TSG derived information
concerning total indigent defense expenditures and the different structures
of the counties’ indigent defense systems. Specifically, TSG derived
information on:
•

Organization—the source of the public defender’s budget, how the
annual budget request is prepared, salaries, who oversees the office, who
appoints public defenders to the office, and how the office assigns its
caseload;

•

Caseload—the number of cases and the types of cases handled by the
public defender office in a given year. (Notably, however, 15 offices failed
to provide any caseload information because they have no mechanisms in
place by which to track caseloads. Only five offices were able to break
their caseloads down into types of cases.);

•

Staffing—the number of public defenders, paralegals, legal secretaries,
social workers, investigators and other support staff, including clerks,

169

INDIGENT DEFENSE IN PENNSYLVANIA

receptionists, administrative assistants and computer systems
administrators; and
•

Expenditures—the method in which the office allocates its money,
particularly in homicide cases and those in which conflict counsel are
appointed, and adequacy of funding for providing quality representation.

THE SPANGENBERG GROUP STUDY
The Spangenberg Group research team gathered on-site qualitative and
quantitative criminal public defender data from 12 of the Commonwealth’s
67 counties. The 12 counties were Bucks, Centre, Clarion, Crawford,
Dauphin, Erie, Huntingdon, Lycoming, Montgomery, Philadelphia, Union,
and Warren. The sample sites included three of Pennsylvania’s four most
populous counties, plus nine others that were selected on the basis of
population size, demographic diversity, percentage of minority population,
poverty rates, and crime rates. The sample sites were also representative of
the Commonwealth’s three geographic regions (East, Central, West).12
Table 1 shows the demographic breakdown of the sample counties:

170

TABLE 1
County-by-County Demographics
County

Population Square Density
(1998)
Miles

Race
%
White

Gender
%
%
Black Hispanic

%
Other

%
Male

%
Female

Income
Per
Household

Bucks

597,635

607

984.6

91.1%

3.3% 2.3%

3.3%

49.1%

50.9%

$54,664

Centre

135,758

1,108

122.5

90.6%

2.6% 1.7%

5.1%

51.1%

48.9%

$38,108

Clarion

41,765

602

69.4

97.8%

0.8% 0.4%

1.0%

48.3%

51.7%

$30,562

Crawford

90,366

1,013

89.2

96.6%

1.6% 0.6%

1.2%

48.7%

51.3%

$31,749

Dauphin

251,798

525

479.6

75.6%

16.9% 4.1%

3.4%

48.0%

52.0%

$41,140

Erie

280,843

802

350.2

89.8%

6.1% 2.2%

1.9%

48.8%

51.2%

$35,341

45,586

874

52.2

92.8%

5.1% 1.1%

1.0%

52.3%

47.7%

$31,879

Lycoming

120,044

1,235

97.2

93.6%

4.3% 0.7%

1.4%

48.9%

51.1%

$32,767

Montgomery

750,097

483 1,553

85.3%

7.5% 2.0%

5.2%

48.3%

51.7%

$55,580

Philadelphia 1,517,550

135 11,241.1

42.5%

43.2% 8.5%

5.8%

46.5%

53.5%

$28,897

Union

41,624

317

131.3

87.6%

6.9% 3.9%

1.6%

55.3%

44.7%

$36,528

Warren

43,863

883

49.7

98.4%

0.2% 0.3%

1.1%

49.0%

51.0%

$33,863

3,916,929

8,584

1268.3

86.8%

8.2% 2.3%

2.7%

49.5%

50.5%

$37,590

12,281,054 44,817

274.0

84.1%

10.0% 3.2%

2.7%

48.3%

51.7%

$37,267

Huntingdon

Selected
Counties
State

Source: U.S. Census

INDIGENT DEFENSE IN PENNSYLVANIA

The research team focused on gathering qualitative and quantitative data
regarding the manner in which each county provides representation to
its indigents; the qualifications and appointment process of attorneys
accepting indigent defense cases; the money spent on indigent defense;
the resources (including funds for investigators, expert witnesses,
technology, and support services) available to public defenders and others
representing indigents; the point in proceedings at which counsel is
appointed; and the training and supervision of indigent defense attorneys.
Each of the factors has a bearing upon the quality of representation
afforded indigent defendants.
Prior to the site visits, The Spangenberg Group obtained the results of the
Committee’s mail survey of indigent defense costs and expenditure
information, as referenced in the preceding discussion on the statewide
indigent defense surveys. TSG also collected all available caseload
data relating to court appointments for each criminal court in the sample
counties. Unfortunately, the lack of reliable county data was a major
obstacle to the study and analysis of the Commonwealth’s indigent
defense system.
To gain perspective on the status of Pennsylvania’s indigent defense system,
TSG also compared the Commonwealth’s expenditure data with similar
data from six comparable states. In these analyses, TSG treated the
Defender Association of Philadelphia differently from offices in the other
sample counties because it differs markedly from other public defender
systems. Including Philadelphia in the overall analysis would skew the
picture of the indigent defense situation in Pennsylvania. The differences
between the systems in Philadelphia and other counties are elaborated upon
further later in this chapter.
In addition to the collection of quantitative data in each sample county,
there were two qualitative components to TSG’s site work. First, members
of the project team observed criminal court proceedings in all 12 sample
counties, providing a first-hand view of how the system operates in
each county. The observers paid special attention to defendants’ first
appearances and arraignment courts. The site assessments also drew upon
substantial in-depth interviews with judges, court staff, public defenders,
court-appointed counsel, prosecutors, jail officials, and county policymakers. Follow-up phone calls were made to clarify information and to

171

INDIGENT DEFENSE IN PENNSYLVANIA

interview criminal justice personnel who had been unavailable during the
site visits.
Findings from TSG’s study are reported in full at Appendix Vol. I to the
Committee’s Report. The findings are also summarized later in this chapter.

PUBLIC HEARING TESTIMONY

172

During the Committee’s public hearings, witnesses testified to problems
and challenges facing indigent defense counsel in Pennsylvania, and some
witnesses made specific recommendations for improvements and reforms in
the system. This report will refer to specific testimony where it illustrates or
relates to the discussion of other components of the indigent defense study.

INDIGENT DEFENSE IN PENNSYLVANIA

INDIGENT DEFENSE EXPENDITURES
IN PENNSYLVANIA
Although, as discussed above, the lack of adequate recordkeeping
hampered respondents’ ability to provide the Committee with complete
information in all areas under examination, TSG was able to develop
estimates of the total indigent defense expenditures in Pennsylvania and to
compile structural evidence on the counties’ indigent defense systems.
The findings are summarized below and are elaborated in greater detail in
the TSG report, Appendix Vol. I, at Part III, pp. 824.

DEFENDER ASSOCIATION OF PHILADELPHIA
One of the most striking findings based upon survey responses was the
disparity in funding and organization between the Defender Association of
Philadelphia and defender offices in the rest of the Commonwealth. Among
the characteristics TSG found to be unique to the Philadelphia office
were its relatively high level of funding; the greater political independence
afforded the office due to its structure as a non-profit corporation; the
levels of specialization and training of attorneys; and its large legal and
support staff. In addition, the Philadelphia office is distinguished by the fact
that it follows the Criminal Division Rules in appointing counsel to cases. 13
First, TSG found that although inadequate, the office was funded at a
considerably higher level than all other defender offices in the
Commonwealth. Although Philadelphia has 12.4 percent of the population
of Pennsylvania and 11 percent of the criminal cases prosecuted in the
Commonwealth’s Courts of Common Pleas, the Defender Association’s
2000 budget represented about 33 percent of the total indigent defense
expenditure in the Commonwealth that year. As reported in the survey
responses, the amount spent per capita in Philadelphia on indigent defense
was $17.23 (defender) and $5.15 (court-appointed counsel), as compared
with averages in other responding counties of $3.34 and 85 cents,
respectively.14
The Defender Association office is also structured differently from public
defender offices elsewhere in the Commonwealth, nearly all of which are
county agencies overseen by county commissioners. The Defender
Association (nearly 60 years old) is an independent non-profit corporation
and a purchase-for-services contractor with the city of Philadelphia.
Therefore, the Association has much greater control over its own budget
and expenditures than other public defender offices. Moreover, the chief

173

INDIGENT DEFENSE IN PENNSYLVANIA

and first assistant defenders are appointed by the board of directors rather
than serving at the pleasure of county commissioners. This governing
structure insulates the office from political pressures. The board has groups
of directors representing the city government, the organized bar, and
the community.

174

Further, the Defender Association stands out among state public defender
offices by allowing for a greater degree of attorney specialization and
providing a far higher level of training and practice resources. The office is
organized into practice units that correspond with types of cases or various
stages of cases.15 In the specialized practice units, a case is assigned to a
single lawyer who handles it through disposition. In addition, the training
unit provides new attorneys with a full-year training program, including a
three-week intensive period. Working under a full-time director of training,
the unit produces resource materials in various substantive and practice
areas for office attorneys.
The Defender Association is the largest and best-staffed defender office in
the Commonwealth, with 202 attorneys and 265 support staff, including
paralegals, legal secretaries, social workers, investigators, and other
administrative staff. In fact, of the total number of staff reported by all
survey respondents throughout the Commonwealth, the Defender
Association accounted for the vast majority of staff in each category.16
In addition, the office is free of the burden of screening applicants for
eligibility for court-appointed services. Philadelphia courts perform this
duty; in other Pennsylvania jurisdictions, clients are generally screened
by public defender offices.
Despite its advantages over other defender offices in the Commonwealth,
there are serious deficiencies in the operation of the Philadelphia Defender
Association office which need to be addressed.17 These include:
•

An extremely high caseload of 100,000 to 150,000 open cases;

•

Very low salaries for staff attorneys;

•

Insufficient and outdated computerization;

•

Inadequate general operations resources, especially in comparison with
the district attorney’s office; and

•

Problems in administrative organization and case management caused by
the reluctance of the district attorney’s office to share information
electronically.18

INDIGENT DEFENSE IN PENNSYLVANIA

OTHER RESPONDING COUNTIES
Quite a different picture was painted by the survey data for the other
responding counties, where county commissioners retained a high degree of
control over indigent defense, the levels of funding and staffing were far
inferior to those in Philadelphia and the caseload burdens were far greater.
In all other responding counties, the budgets of public defenders’ offices
were overseen by county commissioners. In addition, 74.4 percent of the
responding counties’ chief public defenders were county employees. In the
remaining 25.6 percent of the public defender offices, all or some of the
lawyers were either county employees or under contract with the county.
Salaries for public defenders throughout the Commonwealth were generally
low, although public defenders in more populous areas reported being paid
more than their counterparts in small localities. Some part-time public
defenders were paid more in smaller counties, but TSG speculates that the
reason for this may be that some small counties hire only one chief public
defender who is part-time but responsible for all of the office’s cases. That
person is paid more than the average part-time defender because of the
increased responsibilities. Table 2: Public Defender Salaries in Pennsylvania
in FY 2000 set forth below presents these statistics.
TABLE 2
Public Defender Salaries in Pennsylvania in FY 2000
Position

Chief Public
Defender

Average
Full-Time
Attorney

Average
Part-Time
Attorney

Starting Salary
for Entry Level
Attorneys*

Population Greater than 100,000
Number of
respondents

17

10

5

17

Average

$59,030

$42,807

$2,4728

$33,758

Median

$56,000

$44,700

$23,000

$35,000

Range

$34,726—$93,000 $28,000—$51,000 $20,000—$34,000 $24,000—$40,495

Population Less than 100,000
Number of
respondents

21

5

9

9

Average

$34,342

$32,000

$25,272

$26,752

Median

$32,500

$31,000

$23,000

$27,000

Range

$17,708—$50,000 $28,500—$38,500 $11,975—$42,000 $12,000—$38,000

* The respondents who reported that they employed both full-time and part-time public
defenders did not indicate different starting salaries for these two groups.

175

INDIGENT DEFENSE IN PENNSYLVANIA

Part-time attorneys are used extensively in public defender offices. Many
of the responding offices were staffed entirely by part-time attorneys or by
a combination of full- and part-time attorneys; only 11 of the 37 offices
responding to this question did not employ part-time defenders. Moreover,
all offices that employed part-time staff permitted those attorneys to handle
criminal cases in their private practices.

176

The ratios of support staff to attorneys revealed serious gaps in support
services available to public defenders in Pennsylvania. For example, the
ratio of paralegals to attorneys was very low in most responding counties.
The survey revealed that Philadelphia employed 76 of the 77 social workers
employed by public defender’s offices in Pennsylvania; the 77th worked in
Allegheny County, which had only one position. In addition, fewer than
half of the 38 responding counties had an investigator on staff.19
Information on caseloads was difficult to compile and compare. Many
respondents did not provide any caseload information, while many who did
were unable to break down their caseloads by case type. An additional
complication was the lack of a uniform definition of “case.” Some counties
define a case as a charge or multiple charges resulting from one criminal
incident, while others define each client served as a case. Using survey
responses, TSG was not able to extract reliable data on the types of cases,
or make meaningful assessments of what constituted a case in Pennsylvania
public defender offices. This difficulty is noteworthy because it points out
a serious deficiency in public defender offices across the Commonwealth:
the lack of a mechanism in place by which to track caseloads. More specific
information on caseloads was acquired during the on-site phase of the
study, which is summarized later in this chapter.
The survey also collected information on budgets and expenditures, and
TSG supplemented the survey figures with information gathered from the
site visits. Forty of 44 respondents were able to provide budget
information, but only 19 were able to provide expenditure information. For
those who did not specify expenditure figures, however, TSG was able to
extrapolate them from budget information. Based upon these figures, TSG
estimated that the cost per capita of indigent defense in Pennsylvania for
FY 2000 was $6.44.20 See Table 7 for these data.
Counties that supplied data

Table 3 shows county populations, public defender budgets and budget per
capita for the counties that provided information.

INDIGENT DEFENSE IN PENNSYLVANIA

TABLE 3
Available County Public Defender Budget and Budget-per-capita in
Pennsylvania Excluding Philadelphia in FY 2000
(42 counties in all, listed in descending budget-per-capita order)
County

Population

Budget

Budget-per-capita

Dauphin

251,798

$1,542,670

$6.13

Pike

46,302

$267,156

$5.77

Huntingdon

45,586

$248,973

$5.46

Monroe

138,687

$745,845

$5.38

Delaware

550,864

$2,949,000

$5.35

Mercer

120,293

$533,426

$4.43

Chester

433,501

$1,827,550

$4.22

Allegheny

1,281,666

$4,841,000

$3.78

Crawford

90,366

$336,233

$3.72

Forest

4,946

$17,708

$3.58

Bucks

597,635

$2,130,000

$3.56

Erie

280,843

$953,164

$3.39

Potter

18,080

$61,159

$3.38

Venango

57,565

$190,000

$3.30

Luzerne

319,250

$973,465

$3.05

Berks

373,638

$1,120,602

$3.00

Cumberland

213,674

$630,411

$2.95

Lycoming

120,044

$349,579

$2.91

Centre

135,758

$390,999

$2.88

Clarion

41,765

$120,200

$2.88

Clearfield

83,382

$224,396

$2.69

Lehigh

312,090

$820,598

$2.63

Snyder

37,546

$96,357

$2.57

Wayne

47,722

$120,000

$2.51

Somerset

80,023

$197,525

$2.47

Cambria

152,598

$371,660

$2.44

Indiana

89,605

$212,182

$2.37

Carbon

58,802

$136,496

$2.32

Lebanon

120,327

$278,375

$2.31

$80,000

$2.31

Wyoming & Sullivan 34,636

177

INDIGENT DEFENSE IN PENNSYLVANIA

178

County

Population

Budget

Budget-per-capita

Warren

43,863

$101,000

$2.30

Mifflin

46,486

$106,246

$2.29

Montgomery

750,097

$1,701,400

$2.27

Blair

129,144

$290,599

$2.25

Bradford

62,761

$138,700

$2.21

Juniata

22,821

$50,000

$2.19

Washington

202,897

$416,576

$2.05

Bedford

49,984

$100,915

$2.02

York

381,751

$723,451

$1.90

Montour

18,236

$31,747

$1.74

Columbia

64,151

$95,207

$1.48

Tioga

41,373

$50,000

$1.21

Total

7,952,546

$26,572,570

Average

189,347

$632,680

$3.34

Table 4 represents expenditure figures for assigned counsel in the
responding counties.
TABLE 4
Available County Expenditure and Cost-Per-Capita for Assigned
Counsel in Pennsylvania Excluding Philadelphia in FY 2000
(30 counties in all, listed in descending cost-per-capita order)
Population

Expenditure

Cost-per-capita

Huntingdon

45,586

$106,000

$2.33

Blair

129,144

$261,189

$2.02

Adams

91,292

$126,736

$1.39

Dauphin

251,798

$347,061

$1.38

Lancaster

470,658

$628,660

$1.34

York

381,751

$487,000

$1.28

Centre

135,758

$164,464

$1.21

Allegheny

1,281,666

$1,520,635

$1.19

Westmoreland

369,993

$382,539

$1.03

Bradford

62,761

$60,791

$0.97

Mercer

120,293

$105,000

$0.87

Cambria

152,598

$121,375

$0.80

INDIGENT DEFENSE IN PENNSYLVANIA

Population

Expenditure

Cost-per-capita

Potter

18,080

$14,065

$0.78

Erie

280,843

$213,994

$0.76

Delaware

550,864

$400,000

$0.73

Northampton

267,066

$179,101

$0.67

Venango

57,565

$37,000

$0.64

Lehigh

312,090

$194,164

$0.62

Mifflin

46,486

$27,878

$0.60

Lebanon

120,327

$68,556

$0.57

Indiana

89,605

$48,033

$0.54

Armstrong

72,392

$35,000

$0.48

Susquehanna

42,238

$20,203

$0.48

Chester

433,501

$204,100

$0.47

Beaver

181,412

$71,288

$0.39

Bucks

597,635

$213,256

$0.36

Elk/Cameron

41,086

$14,642

$0.36

Montgomery

750,097

$265,345

$0.35

Clearfield

83,382

$16,000

$0.19

Carbon

58,802

$6,636

$0.11

Total

7,496,759

$6,340,711

Average

249,892

$211,357

$.85

Counties that did not supply data

Ideally, an estimate of the cost of indigent defense in Pennsylvania would be
the sum of expenditures for public defender offices and assigned counsel,
plus court funds earmarked for hiring investigators, translators and expert
witnesses on behalf of indigent defendants. Unfortunately, such information
was not available. Estimates for FY 2000, however, could be drawn from
the budget and expenditure information collected by the Committee
surveys that were distributed to public defenders and court administrators.
The survey distributed to public defenders drew responses from
41 counties. TSG supplemented the data with on-site research from two
more counties, bringing the total to 43 counties that collectively represent
77 percent of Pennsylvania’s population and 21 of the 30 counties with
populations over 100,000.

179

INDIGENT DEFENSE IN PENNSYLVANIA

As mentioned above, inclusion of Philadelphia statistics would skew any
statewide estimate. Therefore, the following procedure was used in making
the estimate:
1. Figures for total population and public defender budget of the
43 reporting counties were compiled;
2. The Philadelphia County population and public defender budget were
subtracted from the totals of the reporting counties;

180

3. The aggregate budget-per-capita of the reporting counties, excluding
Philadelphia, was calculated;
4. The total budget of the 24 non-reporting counties was estimated by
using the calculation of per-capita cost submitted by the responding
counties minus Philadelphia;
5. The budgets of the 43 reporting counties (including Philadelphia) were
then added to the estimated budget of the 24 non-reporting counties;
and
6. The resulting figure represents TSG’s estimate of the total expenditure
on Public Defender Offices in Pennsylvania for FY 2000. Table 5
presents these calculations.
TABLE 5
Estimate of Public Defender Budget and Budget-per-Capita in
Pennsylvania for FY2000
Reporting
Counties

Reporting
Counties
Excluding
Philadelphia

Non-reporting
Counties

Total

Population

9,470,096

7,952,556

2,810,958

12,281,054

Budget

$52,712,533

$26,572,570

$9,392,499
(estimate)

$62,105,033
(estimate)

Budget-per-Capita

$3.34

$5.06 (estimate)

The same procedure used to estimate the statewide expenditure for public
defender offices was used to estimate the expenditure for assigned counsel
in Pennsylvania.
Table 6 presents these calculations.

INDIGENT DEFENSE IN PENNSYLVANIA

TABLE 6
Estimate of Assigned Counsel Expenditure and Cost-per-Capita in
Pennsylvania for FY2000
Reporting
Counties

Reporting
Counties
Excluding
Philadelphia

Non-reporting
Counties

Total

Population

9,014,309

7,496,759

3,266,745

12,281,054

Expenditure

$14,161,103

$6,340,711

$2,776,733
(estimate)

$16,937,836
(estimate)

Cost-per-capita

$0.85

$1.38
(estimate)

Table 7 represents the estimate for the total indigent defense expenditure in
Pennsylvania, not including the cost of expert witnesses and investigators
hired by the court at the request of court-appointed counsel.
TABLE 7
Estimated Cost of Indigent Defense in Pennsylvania for FY 2000

Expenditure
Cost-per-capita

Public Defender
Offices

Assigned Counsel Total

$62,105,333

$16,937,836

$5.06

$1.38

$79,043,169
$6.44

181

INDIGENT DEFENSE IN PENNSYLVANIA

INDIGENT DEFENSE EXPENDITURES
IN PENNSYLVANIA COMPARED WITH
SIMILAR STATE SYSTEMS
To put the $6.44 per capita expenditure for indigent defense in
Pennsylvania in perspective, TSG turned to comparisons with other states.
This comparative analysis is limited by the many variables among the states
in funding, organizational structure, demographics, and state laws. As
stated earlier, Pennsylvania, South Dakota, and Utah are the only three
states whose indigent defense system is funded entirely at the county level,
and Pennsylvania alone employs public defender offices as the primary
indigent defense provider at trial. In addition, few states have comparable
populations and maintain accurate data.

182

TSG selected Georgia, Indiana, Kentucky, Louisiana, Ohio, and Virginia
for comparison, based upon criteria that included population size and a
consideration of other variables.21 In each of the six states, interviews were
conducted with state officials, court employees and members of the
indigent defense community in order to obtain current information on
indigent defense expenditures in FY 2000. Table 8 sets forth the state and
county indigent defense expenditure and per capita cost of indigent defense
in each state.
TABLE 8
State and County Indigent Defense Expenditure and
Cost-Per-Capita in Selected States
State

Population

State
Expenditure

County
Expenditure

Total
Expenditure

Fiscal Total
Percentage
Year
Expenditure- of State
Per-Capita
Funds

(2000)

(2000)

(2000)

(2000)

Pennsylvania 12,281,064

$0.00

$79,043,169

$79,043,169

2000

$6.44

0%

Ohio

11,353,140

$60,063,023

$34,203,699

$94,266,722

2000

$8.30

63.7%

Georgia

8,186,453

$6,306,727

$40,581,423

$46,888,150

2000

$5.72

13.64%

Virginia

7,078,515

$61,900,000

$0.00

$61,900,000

2000

$8.74

100%

Indiana

6,080,485

$10,400,000

$24,000,000

$34,400,000

2000

$5.66

30.2%

Louisiana

4,468,976

$7,500,000

$37,017,000

$44,517,000

2000

$9.96

16.8%

Kentucky

4,041,769

$25,845,330

$2,987,000

$28,832,330

2000

$7.13

89.6%

INDIGENT DEFENSE IN PENNSYLVANIA

When expenditures per capita for indigent defense were compared,
Pennsylvania ranked fifth of the seven states with $6.44 per capita. While
straight comparisons of the figures would be misleading because of a
variety of factors, Pennsylvania’s low ranking is indeed cause for concern
because the Commonwealth is characterized by factors that typically result
in greater cost per capita for indigent defense.
Among these factors is the fact that Pennsylvania has a death penalty and
a larger death row population than any of the comparison states. It also has
five of the nation’s 70 largest metropolitan areas with populations over
600,000 within or largely within its borders. By statute, Pennsylvania must
have a public defender’s office in every county, which typically results in a
greater cost per capita. Furthermore, almost a third of the indigent defense
expenditure in Pennsylvania was spent in Philadelphia County; after
discounting that amount, TSG estimated the cost per capita of indigent
defense in Pennsylvania at $4.13—the lowest among the seven states.

183

INDIGENT DEFENSE IN PENNSYLVANIA

INDIGENT DEFENSE IN PENNSYLVANIA:
SPECIFIC FINDINGS
TSG found serious deficiencies in the indigent defense system in
Pennsylvania, largely as the result of inadequate state funding and
oversight.

184

“Pennsylvania’s indigent defense system is characterized
by a lack of state standards, supervision, and
accountability.”
—The Spangenberg Group

Pennsylvania has no systematic data collection.

Policymakers need complete and accurate data if they are to make informed
decisions about improving public legal defense systems. One of the biggest
challenges TSG encountered in conducting this study was the lack of
systematic data reporting, collection, and maintenance. In particular,
information concerning caseloads was woefully inadequate. Many of the
smaller counties could not even estimate their caseloads; other counties
collected certain data, but could not break down the data into types of
cases. Even Philadelphia, the largest county in the Commonwealth, uses
a strictly manual case tracking system.22
A lack of supervision and accountability has resulted
in a deterioration of professional standards for
indigent representation.

Pennsylvania’s indigent defense system is characterized by a lack of state
standards, supervision, and accountability. The Commonwealth maintains
no binding workload standards for indigent defense providers; no uniform
standards for representation of indigent defendants; no written indigency
guidelines; no standards for eligibility and compensation of assigned
counsel; and no guidelines for approving requests for investigators and
psychologists.23
Indigent defense receives inadequate resources
to provide adequate representation

Support services, such as interpreters, investigators, expert witnesses, and
current research materials, are essential to quality representation. (See i.e.,
Ake v. Oklahoma, 470 U.S. 68 (1985), which holds that due process requires
that the defense be provided expert assistance if it is necessary for a fair trial);

INDIGENT DEFENSE IN PENNSYLVANIA

Standard 5-1.4 of the American Bar Association’s Standards for Criminal
Justice: Providing Defense Services (3d. ed.), which states, in part, “The legal
representation plan should provide for investigatory, expert, and other
services necessary to quality legal representation.”) In Pennsylvania, however,
the rapidly increasing caseload for public defenders has not been
accompanied by a corresponding increase in resources for indigent defense.
As a result, public defenders have had neither the material resources nor the
time to prepare cases adequately with the assistance of support services.
Although many public defenders are zealous advocates for their clients, there
is a wide disparity from county to county in the resources they have available
to them. Significantly, there is a marked difference between the resources
available to the prosecution and to indigent defense attorneys in terms of
salaries, technology, support staff, investigators, and other critical resources.
TSG noted, in particular, that representation of indigent clients was
adversely affected by serious inadequacies in the following areas:

Investigation
Most court-assigned lawyers and many public defenders do not make use
of investigators and therefore do not conduct independent investigations of
cases. In counties that do employ investigators, they may spend most of
their time on such matters as indigency screening and serving subpoenas.24
Exacerbating the defense attorney’s inability to prepare an adequate
defense without independent investigation is the ability of district attorneys
to draw upon such resources.25

The lack of resources also prevents defense counsel
from hiring experts…In Erie County [The Spangenberg
Group] were informed that a case that might require a
psychologist and forensic expert might exhaust the
whole budget…
Experts
The lack of resources also prevents defense counsel from hiring experts.
TSG cited cases illustrating the dearth of expert assistance: “In Warren
County, an attorney could recall only one case in which he had an expert
witness. A lawyer in one county told us that as a pharmacist’s son he
felt competent to testify on pathology. In Erie County we were informed
that a case that might require a psychologist and forensic expert might
exhaust the whole budget…In Clarion County, in the prior six months,
a total of one expert had been used.”26

185

INDIGENT DEFENSE IN PENNSYLVANIA

Technology

186

Technological shortcomings plagued public defender offices in all of the
sample counties except Centre County. Nearly all the counties reported
having no computers, or few computers; public defenders in the remaining
counties often had out-of-date computers that in some cases had been
donated by district attorney’s offices. Most counties did not have
computerized case management or tracking systems, despite having
unwieldy caseloads and using horizontal representation systems27 that make
proper file tracking and management critical. Public defenders had
to rely on paper filing systems that were both labor-intensive and difficult
to maintain.28

Training and supervision
Training is indispensable in achieving quality representation. Few offices,
however, offered significant legal training opportunities to attorneys.
Aside from Philadelphia, which has a rigorous training program for new
attorneys and provides regular training to senior attorneys, none of the
county public defender offices visited by TSG has a formal training or
mentoring program.29 Further, most offices other than Philadelphia also
lack formal evaluation and supervision procedures. Aside from mandatory
CLE requirements, indigent defense counsel generally do not participate
in professional development courses, and when they do they often must
pay all or part of the cost themselves. Given the lack of training and
supervision, attorneys often perform inadequately or “burn out” and move
on to other more lucrative practices. 30

Social workers and administrative staff
Aside from Philadelphia, public defender offices in the sample counties
suffered from inadequate support services from social workers and
secretarial staff. Some rural counties did not have access to even a part-time
social worker. The lack of sufficient secretarial assistance is a serious
impediment to legal representation, because attorneys must devote their
time to administrative and clerical tasks rather than legal work, and they
may also “cut corners” by, for example, cutting down on motion practice.31

Privacy
TSG observed that defense attorneys had a difficult time meeting
professional standards of confidentiality because of a shortage of private
spaces in jails, prisons, and courthouses where they met with clients.
In some courthouses, for example, defense attorneys were forced to meet
clients in areas where their conversations were fully audible to prosecutors
and law enforcement officers.32

INDIGENT DEFENSE IN PENNSYLVANIA

Access to research
Most counties in the sample suffer from inadequate legal research facilities.
Not surprisingly, public defenders in those counties engage in very little or
no legal research. Few public defender offices have their own law libraries;
if there is a library, its holdings are generally meager and outdated. Except
in Philadelphia, public defenders and assigned counsel generally have
no access to new developments in the law.33 The lack of adequate computer
resources exacerbates difficulties in conducting research.

Remuneration
Salaries for public defenders are seriously inadequate, especially when
contrasted with the salaries of lawyers in district attorney’s offices. In
Centre County, for example, the district attorney makes $116,000 per year
and the chief public defender makes $57,000.34 Even in counties where
starting attorneys in the two offices begin at the same salary, severe salary
disparities are evident as district attorneys and public defenders move into
more senior ranks. Public defenders find it difficult to pay back their
student loans; that fact, coupled with the general inadequacy of resources,
has a demoralizing effect upon many young public defenders. They leave
their jobs as a result, creating a serious attrition problem for most public
defender offices, including Philadelphia’s.35
Several chief public defenders corroborated this finding in testimony at the
Committee’s public hearings. In Wilkes-Barre, Michael Muth, chief public
defender of Monroe County, discussed the low salaries paid to public
defenders and district attorneys and the disparity in training resources
between the two offices.36 He further noted that the federal Perkins student
loan program allows loan forgiveness for prosecutors (as “state and local
government employees who are deemed ‘essential’ to the enforcement
of criminal law”), but does not extend this benefit to public defenders.37
Ellen Greenlee, chief of the Defenders Association of Philadelphia, testified
in Philadelphia about the low level of funding for the public defender’s
office and the disparity in training resources between public defenders and
district attorneys.38 In addition, M. Susan Ruffner, director of the Office
of the Public Defender of Allegheny County, made similar points in her
testimony in Pittsburgh.39

187

INDIGENT DEFENSE IN PENNSYLVANIA

Lawyers representing indigent defendants
in Pennsylvania often have unmanageable caseloads
far exceeding professional guidelines.

188

Defense counsel for indigents in Pennsylvania struggle
with heavy caseloads…In Bucks County, for example,
the public defender’s caseload in 1980 was 4,173 cases.
In 2000, the same number of attorneys handled an
estimated 8,000 cases.
—The Spangenberg Group

In 1973, the Supreme Court of Pennsylvania invalidated Rule 301 of
Pa.R.Cr.P. 1(c), which limited the number of cases that busy defense
lawyers should accept. (See Moore v. Jamieson, 306 A.2d 283 (Pa. 1973).)
At the same time, however, the American Bar Association’s Standards for
Criminal Justice: Providing Defense Services (3d. ed.) states that defense
attorneys should not “accept workloads that, by reason of their excessive
size, interfere with the rendering of quality representation or lead to the
breach of professional obligations. Special consideration should be given
to workload created by representation in capital cases.”40
Nevertheless, defense counsel for indigents in Pennsylvania struggle with
heavy caseloads, partly because county criminal case filings have increased
without commensurate increases in staffing. In Bucks County, for example,
the public defender’s caseload in 1980 was 4,173 cases. In 2000, the same
number of attorneys handled an estimated 8,000 cases. Similarly, in
Monroe County, Muth testified at the Wilkes-Barre public hearing that the
public defender office’s caseload rose from 1,984 cases in 1998 to 2,782
in 2000, a 39 percent increase in three years. During that period, the staff
size remained the same.41
These staggering caseloads create numerous difficulties for counsel,
resulting in inadequate representation of their many clients. Among the
problems created are:
•

Poor attorney-client contact, as attorneys fail to meet personally with
their clients to receive and communicate vital information;

•

Inadequate preparation, as attorneys, for example, fail to conduct
interviews or investigations, file no motions or file the same boilerplate
motions in every case, fail to act in a timely manner on important
information, fail to pursue issues, or “cut corners” in their work; and

•

High numbers of ineffective assistance of counsel claims based upon these
types of failures.42

INDIGENT DEFENSE IN PENNSYLVANIA

Processes and practices relating to the appointment
and reimbursement of assigned counsel result in poor
quality representation of indigent defendants.

The American Bar Association’s Standards for Criminal Justice: Providing
Defense Services provides specific standards for the appointment of
assigned counsel, prescribing that there be systematic methods for
distributing assignments as well as sufficient advice and assistance available
to support the work of assigned counsel.43 In many of the counties that
TSG visited, these standards were not being met.
TSG found that all counties except Philadelphia lacked a formal screening
process for making court appointments. In most of the counties visited by
TSG, appointments were made through an informal word-of-mouth
network among judges and court administrators. TSG observed other
problems that compounded this deficiency, including the absence of
minimum standards of experience and performance; allegations of
favoritism in the appointment process; and inadequate supervision and
training of assigned counsel. Most counties pay assigned counsel a
flat fee (per year in most counties and per case in Philadelphia), creating
a disincentive for counsel to devote time to a particular case. As a result,
attorneys are not taking the time to visit clients in jail, file motions, conduct
effective investigations, or respond to mail from clients. As one judge said,
the flat-fee system “does not attract the best and brightest.”44
The practice of horizontal or zone representation
is prevalent as a form of case management, yet it
seriously compromises the quality of representation.

In many counties that TSG visited, public defenders employ a horizontal
or zone representation system for cases other than homicides. Under this
system, attorneys are assigned to courtrooms first and clients second.
Therefore, an individual client may be represented by several different
public defenders before a case is resolved. This system has several
disadvantages, all of which adversely affect the quality of representation:
it hinders the development of attorney-client rapport; it creates gaps in
representation that could leave a client without assistance of counsel at
critical stages in a case; it allows attorneys to avoid responsibility for case
preparation and planning; it creates the potential for important information
to be lost as a case passes from one attorney to the next; it results in the
loss of investigation time; and it undermines clients’ respect for and trust
in both the attorneys and the system as their cases are rotated among
different counsel at various stages.45

189

INDIGENT DEFENSE IN PENNSYLVANIA

The prevalence of part-time public defenders
compromises the quality of representation
by creating conflicts of interest for attorneys.

190

American Bar Association standards articulate clearly the importance of a
full-time public defender who can manage the office with no conflicts of
interest; the standards also contain clear and uniform guidelines that enable
part-time defenders to avoid conflicts of interest. (See Commentary to
Standard 5-4.2 of the American Bar Association Standards for Criminal
Justice: Providing Defense Services (3d. ed.).)
Nevertheless, in several mid-sized and rural counties, both the chief public
defender and some assistant public defenders work part-time while
maintaining private law practices. This situation, at a minimum, creates the
appearance that the part-time defenders attend more closely to paying,
private cases than to the cases of indigent defendants.46
Public defenders and assigned counsel in Pennsylvania
lack professional independence.

Whether defense counsel for indigents are public defenders or assigned
counsel, they are generally subject to political pressures. TSG found that
chief public defenders in all counties except Philadelphia are appointed
by the local county commissioners, and may therefore have obtained their
positions through political connections. In addition, the dependence
on county funding allows county commissioners to control the public
defenders’ budgets and sometimes interfere in the operations of
their offices.
Nor are assigned counsel free from political influence. The lack of uniform
standards or oversight of appointment processes gives judges unfettered
discretion in the selection of contract attorneys and the appointment of
attorneys in specific cases. As a result, judges are free, for example, to
appoint friends and acquaintances to cases rather than attorneys who may
be more qualified or more experienced. In addition, appointed counsel
might tailor their representation to avoid displeasing the judge, thereby
preserving their chances for appointment in the future while predictably
dampening their zeal to advocate for their clients. Aside from the conflicts
created by the appointment process itself, the lack of standards and
oversight means that there are no established and uniform procedures or
mechanisms for holding attorneys accountable for the quality of
representation. Judges, moreover, do not monitor attorneys’ caseloads to
insure that they are manageable, nor do judges mandate extra payments for
attorneys when a threshold is exceeded.47

INDIGENT DEFENSE IN PENNSYLVANIA

Muth, testifying at the Wilkes-Barre public hearing, noted the lack of
“political capital” to be gained by county commissioners by giving money
to the public defender’s office rather than the district attorney’s office.48
In most counties, counsel are not appointed in a
timely manner, despite Pennsylvania’s liberal provisions
concerning the time at which the right to counsel
attaches.

As noted in the introduction to this chapter, Pennsylvania law provides that
the right to counsel attaches at arrest and that the accused is entitled to the
effective assistance of counsel at the preliminary hearing. In most counties,
however, these liberal protections are not afforded to indigent defendants.
In several counties defendants appear at critical stages without attorneys
and are required to make important decisions concerning pleas and waivers
of rights without the advice of counsel. Some defendants in minor cases
proceed without a lawyer until they reach the preliminary hearing, or even
the sentencing stage and beyond.49
Pennsylvania lacks uniform, up-to-date financial
eligibility guidelines, and many defendants who need
assistance may not be helped.

People who cannot afford counsel are falling through the cracks because of
the lack of uniform, up-to-date indigency guidelines in Pennsylvania. Some
counties have no standards, while others have standards that are out-ofdate or fail to take into account expenses or other factors such as the size of
the defendant’s family. In some counties, illiteracy may prevent individuals
from receiving assistance to which they are entitled. As a result of these
problems, defendants who might otherwise qualify for assistance are not
receiving it; some defendants who cannot afford counsel do not qualify for
assistance; and some defendants are therefore forced to represent
themselves.50
Christine Konzel, Erie County chief public defender, testified to her efforts to
update the financial eligibility guidelines that her office uses. The guidelines
date from the 1970s and require the office to refuse representation to some
individuals whose income exceeds the guidelines but who cannot afford
attorneys nonetheless. She expressed a desire for state guidance and funding
to assist in developing new state guidelines.51

191

INDIGENT DEFENSE IN PENNSYLVANIA

Most counties have a very low trial rate.

192

For reasons that include the explosion in criminal case filings and expanding
populations, the various actors in the criminal defense system place a
premium on efficiency and speed in the disposition of cases. Judges express
their approval of lawyers who move cases through, and show their
impatience with lawyers who hold things up by defending too passionately.
District attorneys, being “stats driven,” also prefer to dispose of cases
quickly by offering defendants attractive plea bargains. As noted above,
there are many disincentives that keep defense lawyers from engaging in
time-consuming advocacy. The result is a system in which most cases are
pleaded out rather than tried.52
In some counties, the public defender office
lacks strong, engaged leadership.

Interviewees in some counties expressed the view that their chief public
defenders and assistant defenders were not engaged in important aspects
of the public defender function. Among the complaints were that chief
defenders did not take the lead in advocating for greater funds and
resources, even allowing for the complexities of such advocacy within a
county-controlled environment. Further, very few chief public defenders
had sought out or expended the effort needed to obtain other sources of
funding, such as grants. Finally, in at least one county TSG visited, the chief
defender did not know such basic information as whether conflict counsel
are paid by the hour or whether there is a cap on their compensation.53
Public defender offices struggle with attrition.

High caseloads, inadequate resources and low salaries together create
difficulties in attracting and retaining young attorneys who often carry
large law school loans. The indigent defense system, therefore, is losing
good young lawyers to the private sector. Budget increases are not likely in
most counties because many chief public defenders, fearing reprisals
from the county, prefer not to make aggressive demands for additional
resources.54
Both Chief Defender Ellen Greenlee of Philadelphia and Chief Defender
Michael Muth of Monroe County testified to the difficulty of recruiting
attorneys to work for the low salaries their offices are able to offer.

INDIGENT DEFENSE IN PENNSYLVANIA

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Develop uniform binding indigent defense standards to meet indigent
defense quality concerns regarding conflicts of interest, contracting for
services, attorney eligibility, training, and workload.55
2. Direct court administrators to explore innovative programs that seek to
resolve cases earlier or to divert non-violent defendants into counseling
or other alternative programs instead of the court system.

TO TRIAL COURTS
The Committee recommends that the trial courts:
1. Refrain from moving cases through the system at the expense of proper
legal defense for indigent persons.56

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Establish an independent Indigent Defense Commission to oversee
services throughout the Commonwealth and to promulgate uniform,
effective minimum standards. The Commission should report to the
Court one year from the date of appointment.57
2. Appropriate funding for indigent defense services from Commonwealth
funds and adopt adequate uniform attorney compensation standards.58

TO COUNTY PUBLIC DEFENDER OFFICES
The Committee recommends that the public defender offices:
1. Increase diversity of staff, particularly attorneys, and establish clear
anti-bias policies for personnel.59
2. Develop relationships with local law schools and initiate cooperative
arrangements to attract law students to public defense work early in
their careers.60
3. Along with the Pennsylvania Defenders Association, investigate
whether applicable student loan programs, including the Perkins
program, permitting student loan forgiveness for prosecutors, can be
extended to public defenders.

193

INDIGENT DEFENSE IN PENNSYLVANIA

ENDNOTES
············································

194

1

For a more complete discussion of the right to counsel under Pennsylvania law, See The
Spangenberg Group, A Statewide Evaluation of Public Defender Services in Pennsylvania, pp. 5–7,
May (2002), attached in Appendix Vol. I [hereinafter Spangenberg Report].

2

Bureau of Census, Department of Commerce, Press Release, March 11, 1991, p. 2.

3

Bureau of Justice, U.S. Department of Justice, Survey of State Prison Inmates 1991, p. 3 (1993).

4

Marc Mauer, Young Black Men and the Criminal Justice System: A Growing National Problem
(1990) [hereinafter Mauer Young Black Men].

5

Pennsylvania Department of Corrections, Annual Statistical Report 2000; U.S. Census Bureau
2000.

6

Marc Mauer, Americans Behind Bars: A Comparison of International Rates of Incarceration, p. 3
(1991).

7

Mauer, Young Black Men, supra.

8

Charles J. Ogletree, An Essay on the New Public Defender for the 21st Century, Toward a More
Effective Right to Assistance of Counsel, 58-WTR Law and Contemp. Probs. 81, 83 (1995).

9

Bureau of Justice Statistics Special Report, Defense Counsel in Criminal Cases, November 2000;
Bureau of Justice Statistics, February 1996.

10

Nationwide, three different models are employed for providing legal representation to individuals
who are accused of crimes and unable to afford counsel: (1) the assigned counsel model, involving
the assignment of indigent criminal cases to attorneys on a systematic or an ad hoc basis; (2) the
contract model, involving a private bar contract with an attorney, a group of attorneys, a bar
association, or a private non-profit organization which provides representation in some or all of the
indigent cases in the jurisdiction; and (3) the public defender model, involving a public or private
non-profit organization with full or part-time staff attorneys and support personnel. See
Spangenberg Report, supra at 29–30.

11

Forty-two of the 66 surveys sent to public defenders were returned, and 50 of the 61 surveys sent to
court administrators were returned. Two of the surveys were discarded due to contradictory
information. Therefore, 48 of 61 court administrator surveys and 42 of 66 public defender surveys
were used in TSG’s analysis.

12

West (Clarion, Crawford, Erie, Warren); Central (Centre, Huntingdon, Lycoming, Union); East
(Bucks, Dauphin, Montgomery, Philadelphia). Excluding Allegheny County, these counties comprise
approximately 35 percent of Pennsylvania’s remaining population of 10,760,075. See Spangenberg
Report, supra at 2.

13

See Spangenberg Report, supra at 4, n. 2.

14

Id. at 12, Table 3-1.

15

These units or divisions include: Municipal Court Unit, Preliminary Hearing and Felony Waiver
Division, Special Defense/Homicide/Death Penalty Unit, Major Trial Division, Juvenile Court
Division, Juvenile Special Defense Unit, Probation/Parole and Sentencing Alternatives Unit, Appeals
Division, Motions Unit, Mental Health Division, Child Advocacy Unit, Federal Court Division, and
Federal Capital Habeas Unit. The Child Advocacy and Mental Health units have growing civil
practices. The Defender Association has a growing civil practice in its Child Advocacy and Mental
Health Units. It represents only 20 percent of those defendants who receive court-appointed counsel
in homicide cases. See Testimony of Ellen Greenlee, Philadelphia Public Hearing Transcript, p. 297
[hereinafter Greenlee Testimony].

16

See Spangenberg Report, supra at 10–11.

17

Greenlee Testimony, supra at 298–303, 314.

18

Testimony of Charles Cunningham, Philadelphia Public Hearing Transcript, pp. 314–316.

INDIGENT DEFENSE IN PENNSYLVANIA

19

For detailed results and ratios, see Spangenberg Report, supra at 16–18.

20

See Spangenberg Report, supra at 24, Table 3–10.

21

The criteria were population greater than 4 million, death penalty state, indigent defense system
organized at county or regional level, public defender used as indigent defense provider in a number
of counties, large number of counties, and reliable budget data available. See Spangenberg Report,
supra at 25–26.

22

See Spangenberg Report, supra at 64.

23

Id. at 63–64.

24

Testimony of Christine Konzel, Erie Public Hearing Transcript, pp. 128–130 (noting that the two
full-time investigators in her office do intake and serve subpoenas, and conduct investigations in
less than 10% of cases) [hereinafter Konzel Testimony].

25

See Spangenberg Report, supra at 69–70.

26

Id. at 70.

27

Horizontal representation is the term used to define the practice of assigning a public defender to a
particular courtroom to handle all cases in that courtroom on a particular day, rather than being
assigned to defend a particular client who may have several hearings in different courtrooms over
the course of an extended period of time. Under this system, an individual client may be represented
by several different public defenders before a case is resolved.

28

See Spangenberg Report, supra at 71.

29

Id. at 72.

30

Id.

31

Id. at 72–73.

32

Id. at 73.

33

Id.

34

The Committee did receive testimony during a public hearing that in one county in Pennsylvania,
the salaries of the public defender and the district attorney are nearly equivalent.

35

See Spangenberg Report, supra at 74.

36

Testimony of Michael Muth, Wilkes-Barre Public Hearing Transcript, pp. 136–139, 142–143
[hereinafter Muth Testimony].

37

Written Testimony of Michael Muth, p. 4.

38

Greenlee Testimony, supra at 302.

39

Testimony of M. Susan Ruffner, Pittsburgh Public Hearing Transcript, pp. 22, 33–34 [hereinafter
Ruffner Testimony].

40

Standard 5-5.3(a) ABA Standards for Criminal Justice: Providing Defense Services (3d. ed.);
<http:www.abanet.org/crimjust/standards/defsvcs_toc.html>.

41

Muth Testimony, supra at 139–142.

42

See Spangenberg Report, supra at 59–61.

43

Specifically, Standard 5-2.1 provides:
The plan for legal representation should include substantial participation by assigned counsel. That
participation should include a systematic and publicized method of distributing assignments. Except
where there is a need for an immediate assignment for temporary representation, assignments
should not be made to lawyers merely because they happen to be present in court at the time the
assignment is made. A lawyer should never be assigned for reasons personal to the person making

195

INDIGENT DEFENSE IN PENNSYLVANIA

assignments. Administration of the assigned-counsel program should be by a competent staff able
to advise and assist the private attorneys who provide defense services.

196

44

See Spangenberg Report, supra at 66–67.

45

Id. at 64–65.

46

Id. at 74–75.

47

Id. at 62–63.

48

Muth Testimony, supra at 139.

49

See Spangenberg Report, supra at 75–76.

50

Id. at 77–78.

51

Konzel Testimony, supra at 117–118 and 126–127.

52

See Spangenberg Report, supra at 76–77.

53

Id. at 79.

54

Id. at 76.

55

One of the most notable developments in the delivery of indigent defense services in the past ten
years has been the adoption of standards and guidelines for attorney eligibility, workloads, conflicts
of interest, indigency screening, attorney performance, and administration of indigent defense
systems. Standards and guidelines have been adopted at all levels, by state and local legislation,
state supreme court rule, national, state, and local public defender organizations, indigent defense
commissions, and other entities, including the American Bar Association. See American Bar
Association Standards for Criminal Justice: Providing Defense Services (3d. ed.);
<http:www.abanet.org/crimjust/standards/defsvcs_toc.html>.
Greater oversight and accountability are needed in Pennsylvania. The Spangenberg Group Report’s
study found one or more counties failed to comply with national or local guidelines in each of the
following areas: conflicts of interest standards, contracting standards, assigned counsel standards,
attorney eligibility standards in death penalty cases, and indigent defense caseload standards. For
discussion of each of these areas, See Spangenberg Report, supra at 85–91.

56

The United States Supreme Court has stated that “an almost total preoccupation…with moving
cases,” an “obsession for speedy dispositions, regardless of the fairness of the result,” and the
“assembly line justice” that results, are inconsistent with the right to counsel. (Argersinger v.
Hamlin, 407 U.S. 25, 34 (1972). In courtrooms across the Commonwealth, however, the quality of
justice for poor defendants is being compromised by the premium some judges have placed on the
speedy disposition of cases. For example, defendants who have not yet retained counsel are
sometimes pressured to proceed with an attorney not of their choosing or to “work something out”
with the district attorney.

57

The public defender office should be an independent entity, free from political or judicial control.
Further, indigent defense in Pennsylvania suffers from a lack of a centralized authority to provide
coordinated planning, oversight, and management. To address all of these concerns, Pennsylvania
should establish an independent, state-level commission to oversee the delivery of indigent defense
services. ABA standards maintain that establishing a board of trustees with responsibility for
governance is an effective means of securing political independence for defender organizations. (See
Standard 5-1.3(b) of the American Bar Association Standards for Criminal Justice: Providing
Defense Services (3d. ed.);<http:www.abanet.org/crimjust/standards/defsvcs_toc.html>. More than
half of the states have such commissions. (See Spangenberg Report, supra at 81-95; Appendix 2)
Membership is typically broad-based, including former judges, legislators, former prosecutors, and
experienced defense attorneys. It also should reflect the racial, ethnic, and gender composition of
the client community. Such a commission can be created by the legislature or the courts, and may be
part of the judicial or executive branches. Most of the states that have created such commissions
ensure oversight by those directly answerable to the state citizenry by requiring that members be
appointed by executive, judicial, and legislative representatives. Other members are generally
appointed through statewide and local bar associations. Ideally, a statewide commission would

INDIGENT DEFENSE IN PENNSYLVANIA

significantly increase the resources for, set meaningful standards for, and professionalize indigent
defense services throughout the state. It would do so by promulgating and monitoring compliance
with indigent defense standards, securing adequate financing to guarantee effective representation,
overseeing the training of defense providers, conducting public education, and defending the system
from attack. In particular, such a commission could help to improve Pennsylvania’s indigent defense
system by: ensuring the independence of the defense function by insulating county public defenders
from political pressures; promoting a unified indigent defense voice to address defender concerns
statewide; ensuring that effective minimum qualifications, training, workload, and contracting
standards will be enforced; guaranteeing that indigent defense data will be collected and reported in
a uniform manner; and studying the issue of quality representation, including the impact of race
and gender on defense representation. For more detailed elaboration of the organization, functions,
and benefits of such a commission, see Spangenberg Report, supra at 81–84.
58

The creation of a state Indigent Defense Commission should be accompanied by state funding of
indigent defense. As mentioned above, Pennsylvania is one of only three states with no state funding
for indigent defense. The result of the dependence on county-level funding has been the underfunding of indigent defense, which in turn has led to inadequate attorney performance and poor
morale among public defenders and contract attorneys. For discussion of a model of state funding
that has been followed with success in other states (reimbursement by the state of a percentage of
the counties’ defense expenditure.) See Spangenberg Report, supra at 84–85.

59

Minorities were disproportionately represented in the criminal justice systems of the sample
counties. Therefore, to enhance public and client confidence, trust, and respect, efforts should be
made to achieve better diversity among the staff of the public defenders’ offices, particularly
attorneys. Public defenders also should ensure that their staffs perform their duties without biases
based upon race, ethnicity, gender, class, or disability. This can be encouraged by, for example,
paying attention to candidates’ attitudes toward diversity in the recruitment and selection of
employees; providing diversity training for employees; establishing a clear anti-bias policy and
disciplining individuals who violate it; and creating a fair and impartial mechanism to report and
investigate claims of bias. See Ruffner Testimony, supra at 25–27.

60

An arrangement that mutually benefits law students and public defender offices is an internship
program, by which law students gain invaluable lessons in applying the law they have learned in the
classroom and public defenders receive much-needed assistance in research and investigation.
This will enhance their ability to recruit new attorneys and increase the pool of applicants.

197

6

RACIAL AND ETHNIC
DISPARITIES
IN THE IMPOSITION
OF THE
DEATH PENALTY

200

INTRODUCTION

203

THE NECESSITY FOR COMPREHENSIVE DATA COLLECTION

205

EMPIRICAL RESEARCH IN PENNSYLVANIA AND ELSEWHERE

210

DELIVERY OF COUNSEL SERVICES TO INDIGENT DEFENDANTS

214

THE NEED FOR A RACIAL JUSTICE ACT

216

STANDARDS FOR THE EXERCISE OF PROSECUTORIAL
DISCRETION

218

CONCLUSION

219

RECOMMENDATIONS

222

SOURCES

223

ENDNOTES

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

INTRODUCTION

200

Few issues have engendered more passionate discourse than the role of
the death penalty in contemporary American society. Often central to the
debate is the concern for equal justice for those charged with capital
murder. Pennsylvania has the nation’s fourth largest death row,1 with
245 inmates currently under sentence of death in the Commonwealth.
Although Pennsylvania’s minority population is 11 percent, two-thirds
(68 percent) of the inmates on death row are minorities.2 Pennsylvania is
second only to Louisiana in the percentage of African Americans on death
row.3 While our courts and Legislature are committed in principle to the
identification and elimination of discrimination in the administration of the
death penalty, little has been done to facilitate a comprehensive study of
capital charging and sentencing in Pennsylvania to determine what role,
if any, race and ethnicity have played in capital punishment.

Pennsylvania has the nation’s fourth largest death row,
with 245 inmates currently under sentence of death
in the Commonwealth. 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.
—U.S Bureau of Criminal Justice Statistics and Pennsylvania
Department of Corrections

The Committee’s goal was to provide a comprehensive framework to
identify and, if found, to recommend ways to eliminate racial and ethnic
discrimination in the imposition of the death penalty in Pennsylvania. The
Committee was guided by the principle of equal justice in furthering this
Commonwealth’s long-standing commitment to ensure equal treatment
under the law, and the awareness of a growing body of literature that links
the enormous financial costs of the death penalty to the failure to afford
fair trials to capital defendants.4 Ensuring equal treatment is a principal
component of a fair trial.
At the inception of its study of the death penalty, the Committee adopted
three working principles. First, issues of racial and ethnic bias cannot be
divorced from the issue of poverty. Unless the poor, among whom minority
communities are overrepresented, are provided adequate legal representation,
including ample funds for experts and investigators, there cannot be a lasting

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

solution to the issue of racial and ethnic bias in the capital justice system.
Thus, the Committee also looked at such issues as adequacy of courtappointed counsel for the poor and availability of essential resources for
their defense. Second, it was decided that the Committee’s recommendations
should be supported, to the extent possible, by empirical data. To this end,
the Committee endeavored to collect existing statistical research on the death
penalty and, where resources allowed, to undertake additional studies.
Third, the Committee concluded that responsibility for ensuring equal justice
could not be relegated to a single branch of government. The judicial,
legislative, and executive branches should all assume a role in ensuring equal
treatment for those charged with a capital offense.
The Committee reviewed existing studies on the imposition of the death
penalty in Pennsylvania and elsewhere, conducted surveys of county public
defender offices and court administrators, reviewed testimony from its
public hearings, and used the findings from its study on the indigent
defense system.
Based on existing data and studies, the Committee concluded that there are
strong indications that Pennsylvania’s capital justice system does not operate
in an evenhanded manner.5 At least one county, Philadelphia, has been
extensively studied. After controlling for the seriousness of the offense and
other non-racial factors, researchers there found that 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. Race was also
shown to be a major factor in capital jury selection, with the prosecution
striking African Americans from the jury twice as often as non-African
Americans, and with the defense doing just the opposite. Also, both sides
routinely, but to a lesser degree, discriminate on the basis of gender, with the
prosecution favoring men and the defense favoring women. The substantial
racial impact found in Philadelphia capital cases argues strongly in favor
of a large-scale, state-sponsored and state-funded research effort. Not until
the Commonwealth undertakes a comprehensive data collection effort
and subjects the data to rigorous analysis, can the question of the role of race
and ethnicity in capital cases be fully addressed.

201

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

Researchers…concluded that one third of African
Americans on death row in Philadelphia County
would have received life sentences if they were not
African American.
—Professors David C. Baldus and George Woodworth

202

The Committee also studied delivery of public defender and courtappointed counsel services to the indigent. To this end, the Committee
retained The Spangenberg Group, nationally recognized experts in this
field, to review the adequacy of public defender services in Pennsylvania.
Using the American Bar Association standards6 as a benchmark, the
Committee concluded that delivery of these services is inadequate
throughout the Commonwealth. With the exception of Philadelphia, there
was a lack of effective standards for appointment of capital counsel.7
No training specific to capital representation is required for attorneys by
Pennsylvania counties. No county routinely appoints two lawyers on
capital cases. No county effectively monitors performance of capital
counsel. There is no statewide Capital Defender or Capital Case Resource
Center. All Pennsylvania counties surveyed failed to compensate attorneys
adequately and provide sufficient funds for experts and investigators.8
Notably, however, Philadelphia County recently increased funding for
court-appointed counsel fees.
The Work Group selected by the Committee to analyze this important issue
was composed of criminal justice experts of many outlooks and professions,
who were selected on the basis of their expertise, and without regard to their
views on the death penalty. Its racially and gender-diverse membership was
well-balanced and included current and former prosecutors and criminal
defense lawyers, a judge, a police officer and an investigator.
The ability to prove discrimination where it exists is beyond the resources
of most capital defendants and an avenue for redress in the courts
remains elusive, particularly because federal constitutional doctrine fails to
provide an effective remedy for racial and ethnic discrimination. Legislative
initiatives that would allow the showing of a pattern and practice of
disparate treatment to stand as proof of discrimination have failed.
Therefore, to provide a means of proving discrimination, the Committee
recommends passage of a Racial Justice Act or comparable legislation, as
other states have done, which would permit a prima facie equal protection
violation to be established by a statistical showing of disparate treatment.

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

THE NECESSITY FOR COMPREHENSIVE
DATA COLLECTION
The creation and maintenance of a detailed database encompassing all
factors which could influence capital decision-making is central to the
development of any comprehensive plan to identify possible racial and
gender discrimination in capital charging and sentencing. Currently, no
governmental authority is systematically collecting data on capital charging
and sentencing in Pennsylvania. Prior to 1998, the Supreme Court of
Pennsylvania required judges to submit murder review forms for all cases
resulting in a first-degree conviction to facilitate its statutorily mandated
proportionality review.9 The completed forms were submitted to the AOPC,
along with supporting materials such as the verdict slip and trial court
opinion. The AOPC then generated a computerized database for use in its
internal proportionality reports and made the data available to litigants and
other interested parties. However, in 1998, the Legislature repealed
proportionality review10 and the Court subsequently rescinded its order
to submit the review forms.
Other state agencies involved in data collection do not collect sufficient
information to permit a detailed study of capital sentencing. For example,
the Pennsylvania Commission on Sentencing collects information on
murder cases, if reported, but as first- and second-degree murder involves
the imposition of mandatory sentences, the Commission has not enforced
submission of the forms. Even if it were complete, this data would reflect
only the disposition of the case and the age, gender, race, and prior record
of the defendant and would not permit exhaustive analysis.
The Department of Corrections is a potential source for case lists and some
background data on defendants but is otherwise of limited utility. Source
materials are inconsistent; there is often no indication of how the conviction
was obtained (plea, jury, non-jury) and procedural facts such as aggravating
and mitigating factors presented and found cannot be accurately discerned.
The Committee quickly rejected a recommendation that the Supreme
Court of Pennsylvania simply reinstate the order requiring submission of
murder review forms, notwithstanding the repeal of proportionality
review. It concluded that the review form, while sufficient to permit simple
qualitative comparisons of cases with common aggravating and mitigating
circumstances, is inadequate to allow an analysis of race effects. The
Committee has two principal concerns with respect to reinstating the
review forms. First, they are limited to first-degree convictions and thus
address a very narrow universe of cases, and preclude review of

203

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

prosecutorial decisions to plead death-eligible cases to lesser degrees
of murder. Second, they fail to reflect which mitigating circumstances
were found, and the paucity of non-statutory factors collected (i.e.,
socioeconomic status of the defendant and victim and the brutality of the
murder), factors which in theory might explain any observed disparities,
severely undermines their utility.

204

The Committee concluded that any meaningful effort to assess the
evenhandedness of a capital charging and sentencing system will require a
comprehensive data collection effort, one administered under the auspices
and authority of the Supreme Court of Pennsylvania. Large-scale data
collection, dependent on the cooperation of the courts of the various
counties, is beyond the ability of individuals to collect and maintain
indefinitely. To this end, the Committee reviewed systems used by other
states, particularly New York and New Jersey, both of which have
ongoing data collection programs for capital cases.
New Jersey is a model state. The New Jersey Administrative Office of the
Courts (AOC) has been collecting data on capital cases since 1989.
It employs a comprehensive data collection instrument, with mandatory
reporting requirements. A master appointed by the court oversees the
process and resolves factual disputes between parties. The AOC dedicates
staff to ensure judicial compliance and maintain the database.11
The Committee recommends that the Supreme Court of Pennsylvania retain
a principal investigator to develop a research design and a plan to
implement data collection, or alternatively, appoint a master to oversee the
process, as in New Jersey. The research plan should include cost estimates
and staffing requirements, design goals, a strategy for developing master
case lists, case screening and coding protocols, finalization of a data
collection instrument, and data entry and checking routines. The researcher
should also develop a plan to analyze the data. Over the years, New Jersey
has experimented with a number of alternative measures to test the impact
of race and gender on capital decision-making. Several opinions of the
New Jersey Supreme Court, as well as masters’ and experts’ reports,
address the pros and cons of these various measures.12 Ultimately, the
decision as to which measures prove most enlightening will rest with the
Supreme Court of Pennsylvania but the researcher should have the
responsibility of presenting a full panoply of options to the Court.
A number of data collection instruments in use around the country were
assembled and reviewed. The research resulted in a proposed model
instrument (modified from the Philadelphia research), found at Appendix
Vol. I.

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

EMPIRICAL RESEARCH IN
PENNSYLVANIA AND ELSEWHERE
Three substantial studies have been conducted on the impact of race in capital
jury selection, sentencing, and charging in Pennsylvania. An additional
nationwide study, including a Pennsylvania component, addressed, among
other topics, the adequacy of capital counsel as measured principally by
reversal rates for ineffectiveness of counsel. Professor David C. Baldus of the
University of Iowa Law School and his colleague, George Woodworth,
professor of statistics, also of the University of Iowa, conducted two of these
studies. Professor Baldus is the former Special Master for Proportionality
Review in New Jersey and is widely recognized as one of the nation’s leading
death penalty researchers. The first Baldus study was an analysis of capital
charging and sentencing in Philadelphia, a county responsible for more than
half of Pennsylvania’s death row.13 The second was an analysis of jury
selection in capital prosecutions, again in Philadelphia.14 Professor Baldus
summarized his research in public hearing testimony before the Committee on
December 6, 2000. The third major study was conducted by Dr. William
Bowers of Northeastern University as part of the 14-state Capital Jury Project,
which he directs. The Pennsylvania portion of the research was conducted
largely by his colleague, Dr. Wanda Foglia of Rowan University, who prepared
an analysis for this Committee.15
In his testimony before the Committee, Baldus summarized four principal
findings from his research in Philadelphia. First, in Philadelphia capital
trials, African American defendants are at a higher risk of receiving the
death sentence than are similarly situated non-African American
defendants. Second, in the selection of capital juries, Philadelphia
prosecutors and defense counsel systematically exclude venire members
through the use of peremptory challenges on the basis of their race and
gender, in spite of federal law prohibiting such discrimination. Third, this
jury selection strategy skews jury sentencing decisions towards increasing
the frequency of death sentences. It also enhances the level of race
discrimination against African American defendants. Fourth, this skewing
effect is principally the product of high prosecutorial strike rates against
African American venire members that are not off-set or counteracted by
high defense counsel strike rates against non-African American members.16

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206

In the charging and sentencing study, Baldus first identified all of the
death-eligible cases processed in Philadelphia between 1983 and 1994. In
a large sample of these cases, he and his research team collected detailed
information covering hundreds of variables, including the procedural facts
of the case, aggravating and mitigating circumstances (both statutory and
non-statutory), characteristics of the murder (the level of violence, wounds
inflicted, weapons used), and a host of other factors which may have
influenced the decision-makers. They also collected information on the
race, gender, and socioeconomic status of the defendants and victims. With
this data, Baldus was able to take into account the differing levels of
criminal culpability for all the defendants in the study to see if the race
effects could be explained by the gravity of the offense.
Baldus used standard statistical methodology in his analysis, the same
methodology commonly used in employment discrimination cases, including
logistic regression analysis that controls for a multitude of variables.17
Professor Baldus found substantial race-of-defendant effects in Philadelphia
County. He likened the impact of being African American to being saddled
with an extra aggravating factor, that is, on average, being African American
increased the chance of a defendant receiving a death sentence to the same
degree that the presence of the aggravating circumstance of “torture” or
“grave risk of death” increased the chance of a non-African American getting
a death sentence. Baldus concluded that one-third of the African Americans
on death row in Philadelphia would have received life sentences were they
not African American. When looking at death sentences returned for failure
of the defendant to prove any mitigating circumstances, he also found strong
race-of-victim effects. When the victim was white, juries were significantly
more likely to find no mitigation than when the victim was not white.18
The second area of discrimination in capital trials in Philadelphia examined by
Professor Baldus was that of jury selection; specifically, the use of peremptory
challenges, the right conferred by rule or statute to strike a limited number of
potential jurors for any non-racial, non-gender reason. In his study of jury
selection in 317 capital trials, Professor Baldus found race to be an
overwhelming factor. On average, prosecutors struck 51 percent of the African
American venire members but only 26 percent of the non-African American
venire members, a 25-percentage-point disparity. The study showed that
defense counsel used their peremptory challenges in the opposite manner,
favoring African American venire persons over non-African American venire
persons in approximately the same proportions. The race effects persisted
after controlling for legitimate juror characteristics such as occupation,
education, neighborhood, and responses in voir dire, in a logistic regression

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

procedure. Specifically for prosecution strikes, the regression coefficient for
African American venire persons was 1.5 with a related odds multiplier of 4.5
(significant at .0001).19 For defense strikes, the inverse was true, a coefficient
of -1.6 with an odds multiplier of .20 (significant at .0001).
Baldus also found that discrimination in the use of peremptory challenges had
an impact on the verdicts of juries, one that was ultimately shown to have a
discriminatory effect on outcomes. He first documented a distinct correlation
between prosecutorial and defense counsel strike strategies and the final racial
composition of juries. Then he determined that a relationship existed between
the racial composition of juries and the frequency with which death sentences
were imposed. Lastly, and most significantly, he found a strong association
between the racial composition of the jury and the level of race-of-defendant
discrimination in jury penalty trial sentencing. When the jury is predominately
non-African American (eight or more non-African American jurors), the race
of defendant disparity in death sentencing is twice as high—16 percentage
points (.37 v. .21) versus eight percentage points (.26 v. .18)—as it is when the
jury has a greater representation of African American (five or more African
American jurors).
While defense jury selection practices have some countervailing effect,
overall the prosecution is more successful in skewing the composition
of juries, and its efforts have a substantial impact on the level of
discrimination against African American death penalty trial defendants.
Specifically, Baldus found that when the prosecution made a greater-thanaverage effort to strike African American venire members, the race-ofdefendant disparity in death sentencing outcomes was enormous, a
24-percentage-point (.39 v. .15) higher death sentencing rate in the African
American defendant cases when compared to the cases in which the effort
to strike African American venire members was below average, a
4-percentage-point (.27 v. .31) lower death sentencing rate in the African
American defendant cases.
The Bowers/Foglia research took a different, though complementary,
approach. The Capital Jury Project, directed by Dr. Bowers with funding
from the National Science Foundation, obtained data through detailed
interviews with capital jurors. The Pennsylvania component of this
14-state study entailed interviews with 74 jurors reflecting 27 capital trials.
Interviewers employed a common structured interview instrument,
modified slightly to reflect factors peculiar to Pennsylvania. Jurors were
asked a wide variety of open-ended and close-ended questions related to
juror decision-making, including questions about the case, the parties
(including the judge and lawyers), guilt and sentencing deliberations,

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juror attitudes, and juror background. On average, each interview lasted
three-and-one-half hours.

208

Because of the smaller sample size, Dr. Foglia could not completely
replicate the analysis conducted in the nationwide study, as the various
subgroups would produce too small a sample for statistically meaningful
results. Using a similar approach, however, she confirmed in the
Pennsylvania sample one of Bower’s principal findings, which he styled the
“white male dominance effect”. This approach looks at the impact of
overrepresentation of white males on sentence outcomes. Foglia reported a
significantly higher death sentencing rate by Pennsylvania juries with six or
more white males (100 percent v. 47 percent, significant at the .01 level).
Another area examined by the study was the tendency for premature
decision-making among jurors. Jurors were asked whether they had decided
on an appropriate punishment at four stages between the guilt deliberation
and final vote. As in the principal study, Dr. Foglia found jurors were more
likely to prematurely determine death as the appropriate punishment if the
defendant was not white than if white (37 percent v. 8 percent, significant
at .046). An alternative racial dichotomy, African American vs. non-African
American, produced similar results which were nearly as significant
(38 percent v. 16 percent, significant at .061).
In the national data, Bowers found racial differences in three areas related
to juror perceptions of the case: lingering doubt about the defendant’s guilt;
impressions of the defendant’s remorsefulness; and perceptions of the
defendant’s likelihood of committing criminal acts of violence in the future,
or “future dangerousness.” Although also limited by a small sample, Foglia
found comparable disparities in the Pennsylvania sample. While most jurors
did not harbor doubt about the guilt of the accused, among those jurors who
reported some lingering questions after conviction, this doubt was much
more likely to be a factor in sentencing if the defendant was white. Only for
white defendants, did a substantial minority consider lingering doubt “very
important” or “fairly important,” meaning that despite finding them guilty
these jurors still feared they might be executing an innocent defendant.
If the defendant was white, 16.7 percent of the jurors characterized their
lingering doubt as “very important” and 16.7 percent as “fairly important”
compared to 1.9 percent and 11.5 percent respectively if the defendant
was African American.

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

Bowers and Foglia also looked at perceptions of remorse and its impact as
potential mitigation. As in the national study, African American jurors were
more likely to find the defendant was remorseful. For example, of the
African American jurors, 13 percent were sure the defendant was sorry and
13.3 percent thought the defendant was sorry. None of the white jurors
reported being sure of the defendant’s remorse and only 1.9 percent
thought the defendant was sorry.
Another important death penalty study was conducted by Professor James
S. Liebman of Columbia University School of Law, as reported in Liebman,
Fagin, and West, A Broken System: Error Rates in Capital Cases,
1973–1995 (June 12, 2000) and a follow-up report released on February
21, 2002.20 Between 1973 and 1995, approximately 5,760 death sentences
were imposed in the United States. Liebman tracked the evolution of these
cases in the appellate process, tallying reversal rates at each of three stages
of judicial inspection, direct appeal, state post-conviction and federal
habeas corpus. Of the 5,760 death sentences imposed in the study period,
4,578 (79 percent) were finally reviewed on direct appeal by a state high
court. Of those, 41 percent were reversed because of “serious error,” which
Liebman defined as “error that substantially undermines the reliability of
the guilt finding or death sentence imposed at trial.” An additional
10 percent were reversed for serious error upon further state review in the
post-conviction process. Finally, in the third stage of review, federal habeas
corpus, the reversal rate was 40 percent. The combined error rate for
all three stages was 68 percent.
Liebman also looked at the causes for the reversals. Of the serious error
reversal, “egregiously incompetent defense lawyering,” accounted for
37 percent of the state post-conviction reversals. Liebman also looked at
the results of post-reversal proceedings as a measure of how serious the
errors were. In other words, did they in fact undermine the truth-finding
function? In his state post-conviction study, 82 percent of the capital
reversals resulted on retrial with a sentence less than death (including
7 percent that resulted in acquittal on the capital offense). Liebman flatly
concluded that, “High rates of error, and the time consequently needed to
filter out all that error, frustrate the goals of the death penalty system.”
In Pennsylvania, relatively few cases have undergone all three stages of
review. Liebman reported, however, that as of 1995, the reversal rate on
direct appeal in Pennsylvania was 29 percent.21

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DELIVERY OF COUNSEL SERVICES
TO INDIGENT DEFENDANTS

210

Capital defense is now a highly specialized field
requiring practitioners to successfully negotiate
minefield upon minefield of exacting and arcane
death penalty law. Any misstep along the way
can literally mean death for the client.
Parties on all sides of the death penalty debate have recognized the
appointment of competent counsel in capital cases as an essential
procedural safeguard to the fair and just administration of the death
penalty.22 The days of expecting a general practitioner to provide the
standard of care required in a capital case are long gone. Capital defense
is now a highly specialized field requiring practitioners to successfully
negotiate minefield upon minefield of exacting and arcane death penalty
law. Any misstep along the way can literally mean death for the client.
The importance of ensuring good representation is magnified by the recent
limitations Congress placed on federal review of state court convictions.
In 1996, Congress passed the Antiterrorism and Effective Death Penalty
Act of 1996,23 which dramatically limited the scope and standard of review
for federal courts hearing writs of habeas corpus. The Act made it more
difficult for state prisoners to appeal district court denials of habeas relief,
virtually eliminated second or successive federal petitions challenging a
state criminal verdict, requires the federal courts to employ a standard of
extreme deference to trial court findings, both factual and legal, and
imposed a strict one-year statute of limitations on the filing of federal
habeas corpus. The Act makes it much harder for the federal courts to
remedy instances of ineffectiveness of capital counsel, reinforcing the
necessity to provide adequate counsel in the first instance.
Capital trials require hundreds of hours of preparation. It is incumbent upon
the courts to ensure that all persons charged with a capital offense receive
qualified counsel, comprised of attorneys who are highly trained and skilled
in capital representation. This is important, not only for the obvious goal
of protecting the innocent from wrongful conviction, but also to carry

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

out the responsibility to present the prosecutors and juries with all relevant
mitigation. Proper mitigation preparation represents an enormous
commitment of time, energy, and resources. Scores of witnesses (i.e., family,
friends, work colleagues, religious elders) must be interviewed, records
located and obtained (i.e., school, medical, military) and experts consulted
(typically, psychiatrists or other mental health experts). Investigators and
mitigation specialists should be retained and, in many cases, experts as well.
Implementation of statewide minimum qualifications for counsel appointed to
represent indigent capital defendants will increase the likelihood of adequate
representation, reduce the incidence of wrongful convictions and reversals for
ineffectivess of counsel, restore confidence in the outcomes of capital trials in
the Commonwealth, and most importantly, help reduce the role that race plays
in the imposition of the death penalty.
The Committee believed that two important criteria had to be evaluated in
order to assure the appointment of well-qualified counsel to represent
indigent capital defendants. The first step was to research minimum
standards for capital counsel as established by the legal community, primarily
the American Bar Association (ABA) and National Legal Aid & Defender
Association (NLADA).24 The second step was to survey delivery of indigent
legal services to assess how well minimum standards were being met.
The ABA and NLADA standards largely parallel each other. They are
detailed and comprehensive, but at the same time they are easily adapted
across jurisdictions. Among the key provisions, these guidelines require
appointment of two lawyers in every capital case, recommend use of an
appointment authority insulated from the influence of court administration,
contain specific minimum qualifications for lead and assistant counsel for
each procedural stage of the case, forbid acceptance of appointments if
counsel’s workload is already excessive, require performance monitoring
and procedures for removal from rosters if performance is inadequate,
recommend provision of investigative, expert, and other necessary services,
mandate that counsel be adequately compensated, require that lawyers
undergo initial training to be eligible for capital appointments and periodic
attendance at death penalty-specific legal education thereafter to remain
eligible, as well as a long list of specific responsibilities for the actual
preparation of the case.

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RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

The Spangenberg Group found that of the counties
surveyed, only one met ABA standards for public
defenders. Virtually every other county surveyed
showed serious deficiencies in its ability to deliver
services to capital defendants.

212

To assess the delivery of counsel services, the Committee retained The
Spangenberg Group, nationally recognized experts in this field, to review the
adequacy of public defender services in Pennsylvania. A survey was also
conducted of Pennsylvania counties to develop data on court-appointed
counsel services. This research was not limited to capital cases but included
inquiries specific to capital representation. The Spangenberg Group
concluded that “many counties in Pennsylvania are not meeting their
constitutional, ethical, and professional obligation to provide fair and equal
treatment to poor people accused of crime,”25 and that funding inadequacies
in the delivery of counsel services disproportionately affects minorities:
“In Pennsylvania, racial minority groups are disproportionately
represented in the criminal justice system and the quality of
indigent defense impacts mostly on the minority communities in
the State. The quality of representation has a direct correlation
to the funding of the system. In turn, the quality of indigent
representation has a disparate impact on the most vulnerable
populations in the community, such as minorities and women.”26
Specifically, the Spangenberg Group found that of the counties surveyed,
only one27 met ABA standards for public defenders. Virtually every other
county surveyed showed serious deficiencies in its ability to deliver services
to capital defendants. The following are a few examples of the deficiencies
that were found: There are no specific guidelines for appointment of
counsel, resulting in a lack of quality control over delivery of indigent
services. Judicial administrators operate under systems that place a
premium on dispositions rather than quality representation. Fee structures
are inadequate and in some instances, actually discourage effective
representation by building in financial disincentives to devote the necessary
hours of preparation. The systems employed in most counties favor
inexperienced and less-qualified lawyers, and discourage specialization in
criminal defense. They uniformly fail to provide adequate funding for
support services such as investigators and social workers.28

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

In the court-appointed systems, only one county has specific qualification
requirements.29 All counties, including Philadelphia, fell short in virtually
every other area. Two lawyers are not routinely appointed. When a second
attorney is requested and appointed it is often at a substantially reduced
compensation rate. No county has formulated a comprehensive legal
representation plan independent of court administration. Workload and
performance are not monitored. Support services, such as investigators and
experts, are intermittent and underfunded. No capital-specific training is
required, either initially or continuing. Overall, compensation is insufficient.

213
Based on this analysis, the Committee concluded that delivery of capital
counsel services for the indigent in Pennsylvania is inadequate. No county
is providing representation that meets minimal ABA standards. To increase
the likelihood that all capital defendants receive adequate representation,
the Supreme Court of Pennsylvania should adopt minimum qualifications
for all court-appointed counsel in capital cases in accordance with those
recommended by the ABA.30

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

THE NEED FOR A RACIAL JUSTICE ACT

214

Despite compelling evidence of systemic race-of-defendant and race-ofvictim discrimination in many jurisdictions, not a single capital defendant
has been granted relief on equal protection grounds. Under federal
constitutional doctrine, as defined principally by the United States Supreme
Court’s opinion in McCleskey v. Kemp,31 traditional statistically-based
evidentiary paths to prove discrimination have been closed. The McCleskey
court, however, suggested that legislative action was required if such
evidence was to be considered. If a capital defendant is in fact a victim of
racial bias, he or she should be permitted to raise an inference of
discrimination by showing a pattern and practice of disparate treatment.
A Racial Justice Act or comparable legislation permitting such evidence
would fulfill this goal.
In McCleskey v. Kemp, the United States Supreme Court addressed
the claim that Georgia’s death penalty was used in a racially discriminatory
manner and that McCleskey, an African American man convicted of
killing a white police officer, was a victim of this discrimination. The
evidence illustrated the disparity in the imposition of death sentences in
Georgia based on the murder victim’s race and, to a lesser extent, the
defendant’s race.
After considering the statistical information supporting these allegations,32
the Court narrowly (5-4) held that systemic evidence of racial disparity in
the imposition of the death penalty, however compelling, failed to prove
that McCleskey himself was a victim of discrimination. In rejecting
McCleskey’s claim, the Court suggested that, in the future, reliance on
this type of evidence would require legislative authorization.33
In the aftermath of McCleskey, Congress considered allowing statistical
proof to establish presumption of discrimination in capital sentencing cases.
The Racial Justice Act, which was first proposed in 1988, see H.R. 4442,
100th Cong. (1988), was approved by the House of Representatives in both
1990 and 1994, but was ultimately felled by Senate opposition. The Act
would have allowed a court to consider legitimate statistical data as
evidence of racial bias in the imposition of the death sentence within
a particular jurisdiction. Upon a demonstration of such bias by the defense,
the burden would have shifted to the prosecution to demonstrate that race
was not a significant factor in seeking the death sentence in the
specific case. 34

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

In 1998, Kentucky became the first jurisdiction to enact a Racial Justice Act.
It states: “No person shall be subject to or given a sentence of death that
was sought on the basis of race…A finding that race was the basis of the
decision to seek a death sentence may be established if the court finds that
race was a significant factor in decisions to seek the sentence of death in
the Commonwealth [Kentucky] at the time the death sentence was sought.”35
The Act goes on to state that statistical and other types of evidence may
be presented to prove that race was a factor in the decision to seek death.
The passage of the Racial Justice Act in Kentucky revived legislative interest
elsewhere. Legislators in Georgia,36 North Carolina,37 and Illinois38 have
recently introduced forms of a Racial Justice Act, although to date, only
Kentucky has enacted one.
Despite the fact that a growing body of evidence reveals systemic
discrimination in many jurisdictions, not a single capital defendant has been
granted relief on equal protection grounds. A comprehensive solution to
discrimination in the imposition of the death penalty requires that litigants
have some avenue to prove their claims. The Committee recommends that the
Legislature enact a Racial Justice Act to permit proof of an equal protection
violation by showing a pattern and practice of discrimination.

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STANDARDS FOR THE EXERCISE OF
PROSECUTORIAL DISCRETION

216

No county prosecutor’s office in Pennsylvania employs public guidelines
defining standards and procedures for seeking the death penalty. Attempts
to learn about the internal procedures were rebuffed by the Pennsylvania
District Attorneys Association, which advised member counties not to
cooperate with the Committee on this point.39 Prosecutors are crucial
decision-makers in the administration of the death penalty, and any
comprehensive plan to identify and remedy discrimination in charging
decisions requires their open and willing participation.
The Committee recommends the adoption of prosecutorial standards and
procedures for seeking the death penalty. One such model can be found in
the federal jurisdiction. The Department of Justice (DOJ) procedures for
the authorization of the death penalty are set forth in Section 9-10.000 of
the United States Attorney’s Manual. These procedures were promulgated
in 1995 and revised in 2001. Under the procedures, the death penalty may
not be sought without prior written authorization of the Attorney General.
A detailed death penalty memo must be prepared and sent to DOJ by the
regional offices in every death-eligible case. The U.S. Attorney must give
notice and an opportunity to be heard to defense counsel before deciding to
request death penalty authorization. Within the Department of Justice,
a committee considers each death-eligible case and recommends to the
Attorney General whether the death penalty should be sought. The
committee is required to “consider all information presented to it, including
any evidence of racial bias against the defendant or evidence that the
Department has engaged in a pattern or practice of racial discrimination
in the administration of the Federal death penalty.”40
The manual sets forth specific criteria to be considered and explicitly bars
consideration of race and ethnic origin in the decision.
“In determining whether or not the Government should seek the
death penalty, the United States Attorney, the Attorney
General’s Committee, and the Attorney General must determine
whether the statutory aggravating factors applicable to the
offense and any non-statutory aggravating factors sufficiently
outweigh the mitigating factors applicable to the offense to
justify a sentence of death, or, in the absence of any mitigating
factors, whether the aggravating factors themselves are
sufficient to justify a sentence of death. To qualify for

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

consideration in this analysis, an aggravating factor must be
provable by admissible evidence beyond a reasonable doubt.
Because there may be little or no evidence of mitigating factors
available for consideration at the time of this determination,
any mitigating factor reasonably raised by the evidence should
be deemed established and weighed against the provable
aggravating factors. The analysis employed in weighing the
aggravating and mitigating factors that are found to exist
should be qualitative, not quantitative; a sufficiently strong
aggravating factor may outweigh several mitigating factors, and
a sufficiently strong mitigating factor may outweigh several
aggravating factors. Weak aggravating or mitigating factors
may be accorded little or no weight. Finally, there must be
substantial admissible and reliable evidence of the
aggravating factors.”
“The authorization process is designed to promote consistency
and fairness. As is the case in all other actions taken in the
course of Federal prosecutions, bias for or against an individual
based upon characteristics such as race or ethnic origin may
play no role in the decision whether to seek the death penalty.”
Department Of Justice Manual, Volume 7, 9-10.080, Federal Prosecutions
In Which The Death Penalty May Be Sought (emphasis supplied).
A comprehensive plan for the elimination of discrimination requires that
county jurisdictions adopt procedures designed to eliminate the risk of
unequal treatment in the capital selection process.

217

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CONCLUSION

218

Empirical studies conducted in Pennsylvania to date demonstrate that, at
least in some counties, race plays a major, if not overwhelming, role in the
imposition of the death penalty. In order to more effectively identify and
eliminate discrimination in capital charging and sentencing, the
Commonwealth should commit to a large-scale, ongoing data collection
effort that is sufficiently detailed to account for aggravation and mitigation,
both statutory and non-statutory, such as the one currently administered
by the New Jersey Supreme Court.
There is a significant failure in the delivery of capital counsel services to
indigent capital defendants in Pennsylvania, one that disproportionately
impacts minority communities. The Commonwealth should adopt
minimum qualifications for all court-appointed counsel in capital cases.
Providing adequate capital counsel is an indispensable step to preventing
discrimination. Likewise, ensuring that qualified and well-trained counsel
are provided the necessary resources, such as funds for experts and
investigators, and are themselves adequately compensated, is essential to
the maintenance of an even-handed capital system.
Local district attorneys should adopt and publicize clear, well-defined
standards for seeking the death penalty and ensure that defense counsel has
an opportunity to argue and present evidence as to why the death penalty
should not be sought.
Finally, the Legislature should enact a Racial Justice Act to permit proof of
an equal protection violation by showing a pattern and practice of
discrimination.

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Pursuant to its inherent power to issue temporary stays of execution,
declare a moratorium on the imposition of the death penalty in any
case where the defendant’s direct appeal has resulted in affirmation by
the Supreme Court of Pennsylvania, pending the completion of a study
investigating the impact of the race of the defendant and of the victim
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.
2. Empanel a special commission to study the impact of the race of the
defendant and of the victim in prosecutorial decisions to seek the death
penalty and in death sentencing outcomes.
3. Direct the AOPC, or alternatively appoint a master, to undertake a
comprehensive data collection effort covering all stages of capital
litigation, including responsibility for completing the data collection
instruments and maintaining the database and all supporting
documentation. The Court should direct the AOPC, or master, to retain a
principal investigator to review data collection efforts undertaken in other
states and develop a research design and a plan to implement data
collection. The cases to be reviewed should include those in which the
death penalty was sought or could have been sought in all cases where the
defendant was held for court on first-degree murder or murder generally.
4. Amend Rule 801 (former Rule 352) to require that a copy of the
prosecutor’s notice of intention to seek death be filed with the AOPC as
well as the trial court to facilitate tracking of death-noticed cases.
5. Amend Rule 632 (former Rule 1107) to require retention of the jury
questionnaire utilized at trial, which indicates the race and gender of
the jurors, for the duration of the defendant’s incarceration.
6. Mandate statewide standards for an independent appointment process
of selecting capital counsel for all stages of the prosecution, including
trial, appeal, and post-conviction hearings. The standards, at a
minimum, should incorporate those recommended by the American Bar
Association in its Guidelines for the Appointment and Performance
of Counsel in Death Penalty Cases.

219

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

7. Require that all capital counsel successfully complete, at a minimum, an
annual continuing legal educational component specifically focusing on
capital representation.
8. Promulgate reasonable minimum compensation standards for capital
counsel throughout Pennsylvania and ensure that sufficient resources
for experts and investigators are made available to counsel.

220

9. Require trial courts during voir dire in capital cases to explore fully,
when requested by either party, views about race held by prospective
jurors.
10. Promulgate a rule that allows for reasonable latitude by defense counsel
and the Commonwealth to explore all potential sources of racial bias in
voir dire of prospective capital jurors.
11. Require trial courts to charge capital juries, when requested by either
party, that they may not consider the race of the defendant or victim in
determining the appropriate sentence for the defendant.
12. Promulgate a rule that should a prima facie case of discrimination in
the use of peremptory challenges be established, reasons invoked for
the exclusion of the juror that do not substantially relate to his or her
qualifications, fitness, or bias shall be viewed as presumptively
pretextual.
13. Reduce the number of peremptory strikes in capital cases.
14. Promulgate a jury instruction stating “life means life with no possibility
of parole” and require that it be given in all capital cases.

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Enact a Racial Justice Act, like that of other states, that allows for the
admission of evidence of a pattern and practice of disparate treatment
in both the prosecutorial decision to seek the death penalty and in
sentencing outcomes.
2. Enact a proportionality provision requiring the Supreme Court to
review death sentences for proportionality.
3. Create and adequately fund a statewide independent Capital Resource
Center, or its equivalent, to assist in, and where local resources are
inadequate, undertake the representation of, capitally charged
defendants and those currently under sentence of death. The assistance
and/or representation should extend from arrest through trial and, if
the defendant is sentenced to death, through the state and federal
appeal and post-conviction process. The Capital Resource Center also
should be charged with the responsibility of maintaining court

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

appointment lists of qualified capital counsel and of overseeing ongoing
training programs for capital counsel.
4. Appropriate adequate funds to the Supreme Court for the
administration of a comprehensive data collection effort covering all
stages of capital litigation.
5. Enact legislation declaring a moratorium on the death penalty until
such time as policies and procedures are implemented to ensure that the
death penalty is being administered fairly and impartially throughout
the Commonwealth.

TO THE ATTORNEY GENERAL AND DISTRICT
ATTORNEYS
The Committee recommends that:
1. District attorney’s offices adopt written standards and procedures for
making decisions about whether to seek the death penalty.
2. The Attorney General empanel a statewide committee of county district
attorneys to review each decision by a district attorney to seek the
death penalty with the goal of ensuring geographic consistency in the
application of the death penalty. The committee’s review should
commence as soon as possible after each filing of a notice of intention
to seek the death penalty, and the result of its review should not be
binding. The review committee should include, at a minimum, the
Attorney General, the district attorneys of Philadelphia and Allegheny
counties and the current president of the Pennsylvania District
Attorneys Association, but otherwise be geographically representative
of the Commonwealth.

TO THE GOVERNOR OF PENNSYLVANIA
The Committee recommends that the Governor of Pennsylvania:
1. Pursuant to his constitutional authority to grant temporary reprieves,
declare a moratorium on the imposition of the death penalty in any
case where the defendant’s direct appeal has resulted in affirmation by
the Supreme Court of Pennsylvania, pending the completion of a study
investigating the impact of the race of the defendant, and of the victim,
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.
2. Empanel a special commission to study the impact of the race of the
defendant and the victim in prosecutorial decisions to seek the death
penalty and in death sentencing outcomes.

221

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

SOURCES
American Bar Association, Criminal Justice Section Report to the House
of Delegates, reprinted at 40 American University Law Review 1 (1990).
Adopted by the ABA House of Delegates on February 13, 1990.

222

Bruce R. Braun, Getting What You Paid For: The Judicial Cap on
Attorney’s Fees for the Representation of the Condemned in the Supreme
Court, 69 New York University Law Review 1014 (1994).
Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the
Worst Crime but for the Worst Lawyer, 103 Yale Law Journal 1835 (1994).
Randall Coyne & Lyn Entzeroth, Report Regarding Implementation of the
American Bar Associations’s Recommendations and Resolutions
Concerning the Death Penalty and Calling for a Moratorium on
Executions.
Norman Lefstein, Reform of Defense Representation in Capital Cases:
The Indiana Experience and Its Implications for the Nation, 29 Indiana
Law Review 495 (1996).
James S. Liebman, The Overproduction of Death, 100 Columbia Law
Review 2030 (2000).
Jeffrey Levinson, Don’t Let Sleeping Lawyers Lie: Raising the Standard for
Effective Assistance of Counsel, 38 Am. Crim. L. Rev. 147 (2001).
U.S. General Accounting Office, Death Penalty Sentencing: Research
Indicates Pattern of Racial Disparities (1990).
Douglas Vick, Poorhouse Justice: Underfunded Indigent Defense Services
and Arbitrary Death Sentences, 43 Buffalo Law Review 329 (1995).
Jeremy P. White, Establishing a Capital Defense Unit in Virginia:
A Proposal To Increase The Quality of Representation For Indigent Capital
Defendants, 13 Cap. Def. J. 323 (2001).
Welsh White, Effective Assistance of Counsel in Capital Cases:
The Evolving Standard of Care, 1993 University of Illinois Law Review
323 (1993).

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

ENDNOTES
············································
1

Only California, Florida and Texas have more inmates on death row. See U.S. Department of
Justice, Bureau of Criminal Justice Statistics, Capital Punishment 2000 (December 2001 NCJ
190598).

2

As of March, 2002, there were 78 whites, 150 African Americans, 15 Latinos and two Asian
Americans on death row. Execution List, Pennsylvania Department of Corrections
(Updated 3/1/2002).

3

See U.S. Department of Justice, Bureau of Criminal Justice Statistics, Capital Punishment 2000
(December 2001 NCJ 190598).

4

See e.g. Liebman, Fagin, and West, A Broken System: Error Rates in Capital Cases, 1973–1995
(2002), where it was reported that of all death cases that had completed the appellate process the
reversal rate was 68%, requiring in most instances new trial or sentencing proceedings.

5

It is beyond the mandate of the Committee to resolve any disagreement about the validity of the
research, a debate that invariably arises in our adversarial system. The Committee did conclude,
however, that the research was conducted by highly regarded experts and is on strong
methodological footing, and therefore cannot be ignored. At a minimum the alarming results of this
work reinforces the Committee’s call for the immediate initiation of additional statewide research.
See Endnote 17 for further discussion of validity of Baldus study.

6

See American Bar Association Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases (attached in Appendix Vol. I.).

7

According to a recent survey of capital counsel standards, of the 38 states with a death penalty,
Pennsylvania is one of 17 that does not have statewide standards. Twenty-one states have either a
statute or court rule that establishes standards for competency of counsel at the trial, appellate
and/or post-conviction level. Teresa Miranda, NDAA Survey of Standards for Competency of
Counsel In Capital Cases, Prosecutor (May/June, 2002). According to the survey, the following
states have statutes governing standards: Alabama, Georgia (rule and statute), Kansas
(administrative regulation), Louisiana, New York, North Carolina (law requires the Supreme Court
to adopt rules establishing standards), Texas, Virginia and Washington. States establishing
standards by rule are: Arizona, Florida, Georgia (has a rule and a statute), Idaho, Illinois, Indiana,
Montana, Nevada, North Carolina (rules established by the Commission on Indigent Defense
Services which is housed in the Judicial Department), Ohio, Oregon (the rules are promulgated by
the Indigent Defense Services Division of the State Court Administrator’s Office), South Carolina,
Tennessee and Utah.

8

See The Spangenberg Group, A Statewide Evaluation of Public Defender Services in Pennsylvania,
(May 2002). [hereinafter Spangenberg Report] The Report is attached in Appendix Vol. I.

9

See Administrative Office of the Pennsylvania Courts, Review Form, Murder of the First Degree,
attached in Appendix Vol. I.

10

Act of June 25, 1997, No. 28, § 1 (Act 28).

11

See State v. Marshall, 613 A.2d 1059 (1992) (referencing order of July 29, 1988, appointing
Professor David C. Baldus of the University of Iowa Law School as Special Master to assist court in
developing a system for proportionality review).

12

In re: Proportionality Review Project, 122 N.J. 345, 585 A.2d 358 (1990); In re: Proportionality
Review Project, 161 N.J. 71, 735 A.2d 528, (1999); In re: Proportionality Review Project (II), 165
N.J. 206, 757 A.2d 168, (2000); State v. Marshall, 613 A.2d 1059 (1992); State v. Loftin (Loftin II)
724 A.2d 129 (1999); State v. DiFrisco (DiFrisco III), 662 A.2d 442 (1995); Report to the Supreme
Court Systemic Proportionality Review Project, Honorable David S. Baime, June 1, 2001(Baime
III); Report to the Supreme Court Systemic Proportionality Review Project, Honorable David S.
Baime, April 28, 1999 (Baime II). David C. Baldus, Special Master, Death Penalty Proportionality
Review Project, Final Report to the New Jersey Supreme Court (Sept. 24, 1991).

223

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

224

13

The first Baldus study is reported at David Baldus, et al., Racial Discrimination and the Death
Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from
Philadelphia, 83 Cornell L. Rev. 1638 (1998). Excerpts summarizing the findings are presented in
Appendix Vol. I.

14

The second study is reported at David C. Baldus, et al, The Use Of Peremptory Challenges In
Capital Murder Trials: A Legal And Empirical Analysis, 3 U. Pa. J. Const. L. 3, 121–30 (February,
2001). Excerpts summarizing the findings are presented in Appendix Vol. I.

15

See Wanda D. Foglia, J.D., Ph.D, Report on Capital Decision-Making in Pennsylvania (2002)
attached in Appendix Vol. I.

16

Testimony of David Baldus, Philadelphia Public Hearing Transcript, p. 77–78.

17

The model building procedures employed by Baldus in his logistic regression models, though widely
used in the social sciences, are not without their detractors. A recent articulation of these concerns
is found in the work commissioned by the New Jersey Supreme Court for their ongoing
proportionality review. See Special Master David S. Baime, Report to the Supreme Court, Systemic
Proportionality Review Project (June 1, 2001). Special Masters subsequent to Baldus suggested that
the while the Baldus models were suitable for proportionality review they should be modified if the
inquiry is to focus on identification of race effects. Id. at 14. The concerns are largely technical, and
reflect a problem found in all model building. On the one hand the investigator wants to account
for all factors that may have influenced the outcome. On the other hand, models can become
unstable if the number of independent variables is too large, particularly in a database with a
limited number of observations. The final models often represent a compromise between these
competing concerns. Experts retained by the New Jersey Supreme Court felt in light of the relatively
few capital cases in New Jersey, the models should be more parsimonious, meaning fewer
independent variables. Id. at 16–17. These concerns have less application to the Philadelphia
research, where there are many more observations (death sentences) and consequently more room
for the inclusion of independent variables which survive the screening process. Another innovation
introduced in New Jersey is the substitution of rater-screened independent variables for the more
common tests for statistical correlation as a screening tool. Acknowledging that the Baldus
screening method is one commonly used by social scientists, it nevertheless sought to minimize the
risk of variable misspecification by submitting a master list of potential independent variables to a
team of judges to be rated for their expected influence. Those that survived, principally those where
over half the judges rated the factor as “very important” were included in the model. Id. at 22–27.
As with the parsimony issue, concerns about misspecification of the Philadelphia models were
addressed by the use of four independent measures of culpability, one of which, the homicide
severity study (using ex-capital jurors as raters), is similar to the Baime judge-rating method. Most
significantly, the New Jersey Supreme Court continues to recognize the utility of multivariate
regression for assessing the evenhandedness of its capital system.
However, the vast majority of attributions to the Baldus body of work have cited it with approval.
Baldus is best known as the author of the famous “Baldus Study,” which formed the evidentiary
basis for the discrimination claim brought in McCleskey v. Kemp, 107 S. Ct. 1756 (1987).
See e.g., Evan Tsen Lee & Ashutosh Bhagwat, The McCleskey Puzzle: Remedying Prosecutorial
Discrimination against Black Victims in Capital Sentencing, 1998 Sup. Ct. Rev. 145, 146
(“The Baldus study is generally accepted within the social scientific community as thorough,
carefully conducted analysis, and its results as almost certainly statistically valid.”); Anderson
E. Bynam, Casenote, Eighth and Fourteenth Amendments—The Death Penalty Survives McCleskey
v. Kemp, 107 S. Ct. 1756 (1987), 78 J. Crim. L. & Criminology 1080, 1108 (1988) (“[T]he
Baldus study is the most accurate and comprehensive statistical analysis of capital punishment ever
completed.”); Paul Brown, Book Note, Analyzing Racial Bias Claims After McCleskey, 23
Am. J. Crim. L. 231, 232 (reviewing Gregory Russell, The Death Penalty and Racial Bias:
Overturning Supreme Court Assumptions (1994) (noting that “the [Baldus] study has generally
been regarded as one of the most convincing and thorough in the field of death penalty research”);
Stephen L. Wasby, Justice Blackmun and Criminal Justice: A Modest Overview, 28 Akron L. Rev.
125, 180 (1995) (describing the Baldus study as “a major social science study”); Scott W. Howe,
Reassessing the Individualization Mandate in Capital Sentencing: Darrow’s Defense of Leopold and
Loeb, 79 Iowa L. Rev. 989, 1058 (1994) (describing the Baldus study as “monumental”); Deborah

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

W. Denno, Comment, Human Biology and Criminal Responsibility: Free Will or Free Ride?, 137 U.
Pa. L. Rev. 615, 650 (describing the Baldus study as “a highly sophisticated study”); Sheri Lynn
Johnson, The Language and Culture (Not to Say Race) of Peremptory Challenges, 35 Wm and
Mary L. Rev. 21, 71 (1993) (describing the Baldus study as “famous” and consistent with studies in
the field); Carol S. Steiker & Jordan M. Steiker, Review Essay, Let God Sort Them Out? Refining
the Individualization Requirement in Capital Sentencing, 102 Yale L. J. 835, 864 (reviewing Beverly
Lowry, Crossed Over: A Memoir (1992) (referring to the Baldus study as “the famous study” that
set forth the disparities in the imposition of the death penalty based on the race of the victim);
Carrie Menkel-Meadow, Durkheimian Epiphanies: The Importance of Engaged Social Science in
Legal Studies, 18 Fla. St. U.L. Rev. 91, 98 (1990) (describing the Baldus study as “important” and
central to developing a more sophisticated understanding of discrimination in the imposition of the
death penalty).
Also since 1980, federal courts have cited Baldus’ textbook, Baldus & Cole, Statistical Proof of
Discrimination (1980) as authority 86 times, typically in the context of the use of statistics in the
employment discrimination cases. The book has also been cited in the legal and social science
literature 71 times. Most recently, Baldus’ Philadelphia jury study was cited by Justice Breyer in his
concurring opinion in Ring v. Arizona, 122 S. Ct. 2423, 2447 (2002), a case that invalidated death
penalty statutes in four states.
18

The Baldus/Woodworth findings from Philadelphia were consistent with studies from around the
country. In 1990, the General Accounting Office (GAO) for the federal government undertook a
review of all empirical studies on the issue of race in capital sentencing. After an extensive search,
28 studies were identified and analyzed. The results were consistent across data sets, time periods,
states, and analytic techniques. The studies showed that race had its greatest impact in prosecutors’
decisions whether to seek the death penalty. The review concluded that the race of the victim
influenced the likelihood of a defendant being charged with murder and receiving the death penalty,
with a race-of-victim effect indicated in 82% of the studies reviewed. See U.S. General Accounting
Office, Death Penalty Sentencing (Feb. 1990). The studies examined by the GOA included David C.
Baldus et al., Equal Justice & the Death Penalty, 154 Table 32 & 322 Table 53 (1990); Samuel R.
Gross & Robert Mauro, Death & Discrimination: Racial Disparities in Capital Sentencing (1989);
Barry Nakel & Kenneth A. Hardy, The Arbitrariness of the Death Penalty (1987); David C. Baldus
et al., Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to
State Supreme Courts, 15 Stetson L. Rev. 133 (1986); Arnold Barnett, Some Distribution Patterns
for the Georgia Death Sentence, 18 U.C. Davis L. Rev. 1327 (1985); Leigh B. Bienen et al., The
Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion, 41
Rutgers L. Rev. 27 (1988); William J. Bowers & Glenn L. Pierce, Arbitrariness and Discrimination
Under Post-Furman Capital Statutes, 26 Crime & Delinq. 563 (1980); Sheldon Ekland-Olson,
Structured Discretion, Racial Bias, and the Death Penalty: The First Decade After Furman in Texas,
69 Soc. Sci. Q. 853 (1988); Linda Foley, Florida After the Furman Decision: The Effect of Extra
Legal Factors on the Processing of Capital Offense Cases, 5 Behav. Sci & L. 457 (1987); Stephen P.
Klein & John E. Rolph, Relationship of Offender and Victim Race to Death Penalty Sentences in
California, 32 Jurimetrics J. 33 (1991); Elizabeth Lynch Murphy, Application of the Death Penalty
in Cook County, 73 Ill. B.J. 90 (1984); Raymond Paternoster & Ann Marie Kazyaka, The
Administration of the Death Penalty in South Carolina: Experiences Over the First Few Years, 39
S.C. L. Rev. 245 (1988); Michael L. Radelet & Glenn L. Pierce, Race and Prosecutorial Discretion
in Homicide Cases, 19 L. & Soc’y Rev. 587 (1985); M. Dwayne Smith, Patterns of Discrimination
in Assessments of the Death Penalty: The Case of Louisiana, 15 J. Crim. Just. 279 (1987); Hans
Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv. L.
Rev. 456 (1981); Richard Berk & Joseph Lowery, Factors Affecting Death Penalty Decisions in
Mississippi (June 1985) (unpublished manuscript described in Baldus et al., supra note 59, at
258–60); Stephen P. Klein et al., Racial Equity in Prosecutor Requests for the Death Penalty (1987)
(unpublished manuscript on file with author); Margaret Fae Klemm, The Determinants of Capital
Sentencing in Louisiana, 1979–1984 (1987) (unpublished Ph.D. dissertation, University of New
Orleans) (on file with the University of Iowa Law Library).

225

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

A number of other studies have been reported since 1990. See State v. Cobb, 663 A.2d 948 (Conn.
1995); State v. Marshall, 613 A.2d 1059 (N.J. 1992); Conference, The Death Penalty in the
Twenty-First Century, 45 Am. U. J. Rev. 239, 341 (1995) (remarks of Harriet C. Ganson, Assistant
Director of Tax Policy and Administration, U. S. General Accounting Office); Scott Anderson, As
Flies to Wanton Boys: Death Eligible Defendants in Georgia and Colorado, 40 Trial Talk 9–16
(1991); Thomas J. Keil & Gennardo F. Vito, Race and The Death Penalty in Kentucky Murder
Trials: 1976–91, 20 Am. J. Crim. J. 17 (1995); Michael L. Radelet & Glenn L. Pierce, Choosing
Those Who Will Die: Race and the Death Penalty in Florida, 43 Fla. L. Rev. 1 (1991); Ted Rohrlich
& Fredric N. Tulsky, Not All L. A. Murder Cases Are Equal, L.A. Times, Dec. 3, 1996, at A 1;
Michael B. Blankenship & Kristie R. Blevins, Inequalities in Capital Punishment in Tennessee Based
on Race: An Analytical Study of Aggravating and Mitigating Factors in Death Penalty Cases,
31 U. Mem. L. Rev. 823, 858 (2001); Baldus, et al., The Disposition of Nebraska Capital and
Non-Capital Homicide Cases (1973-1999): A Legal and Empirical Analysis, Amended Final Report
(2001).

226
19

Of all factors in the model this was rivaled only by expressed scruples over the death penalty with a
1.9 coefficient and 6.5 odds multiplier, significant at .0001.

20

Excerpts from the report are found in Appendix Vol. I.

21

Liebman, Fagin, and West, A Broken System: Error Rates in Capital Cases, 1973–1995, A-49 (June
12, 2000) (Pennsylvania State Report Card).

22

Justice Blackmun, dissenting in the denial of certiorari in McFarland v. Scott, 114 S. Ct. 2785
(1994); Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases,
American Bar Association (1989); Standards for the Appointment and Performance of
Counsel in Death Penalty Cases, National Legal Aid & Defender Association
(www.nlada.org/standards/death.htm).
Recently a number of prominent jurists and prosecutors have voiced concern over the quality of
capital representation. U.S. Supreme Court Justice Ruth Bader Ginsburg criticized the inadequate
funding available for those who represent poor people. “People who are well represented at trial do
not get the death penalty,” said Ginsburg. “I have yet to see a death case among the dozens coming
to the Supreme Court on eve-of-execution stay applications in which the defendant was well
represented at trial.” (Associated Press, 4/10/01.) Justice Sandra Day O’Connor also expressed
reservations about the process. “Serious questions are being raised about whether the death penalty
is being fairly administered in this country…Perhaps it’s time to look at minimum standards for
appointed counsel in death cases and adequate compensation for appointed counsel when they are
used.” (New York Times, July 5, 2001.) Former federal prosecutor Beth Wilkinson testifying before
the United States Senate Judiciary Committee on June 27, 2001 said, “One of our paramount
concerns is competent counsel for indigent defendants facing the death penalty. All of our citizens,
regardless of ability to pay, and especially those facing capital punishment, should be well
represented.”

23

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, 110 Stat. 1214
(1996) Codified in amendments to 28 U.W.C. §§ 2244-2267 (1996) [hereinafter AEDPA].

24

See American Bar Association Guidelines for the Appointment and Performance of Counsel in
Death Penalty Cases, supra (guidelines “enumerate the minimal resources and practices necessary
to provide effective assistance of counsel,” Introduction, Guidelines).

25

See Spangenberg Report, supra at 81.

26

Id. at 59.

27

Defenders Association of Philadelphia.

28

See Spangenberg Report, supra at Chapter VI (Findings and Recommendations).

29

See Philadelphia County Court Rule 406 et seq. attached as Appendix Vol. I.

RACIAL AND ETHNIC DISPARITIES IN THE IMPOSITION OF THE DEATH PENALTY

30

One deficiency in the ABA and NLADA standards is their failure to call for adequate continuing
legal education and peer review. Some jurisdictions have imposed substantially more stringent
requirements. See, e.g., California’s lengthy requirements in Appendix Vol. I.

31

481 U.S. 279, 319 (1987).

32

Following the evidentiary hearing in McCleskey, District Judge J. Owen Forrester rejected
McCleskey’s race discrimination claim primarily on the ground that the Baldus study did not
represent “good statistical methodology.” 580 F. Supp at 379. However, the appellate courts,
including the Supreme Court, assumed the validity of the study and resolved the issue on legal, not
factual grounds. See 107 S. Ct. 1756, 1776 & n. 7 (1987); 753 F.2d 887, 898 (11th Cir.). Moreover,
many scholars feel Forrester’s opinion betrays a fundamental misunderstanding of the application
of statistics to legal problems. Professor Richard Berk, a member of the National Academy of
Sciences’ Committee on Sentencing Research, testified that the Baldus study has “very high
credibility” and “is far and away the most complete and thorough analysis of sentencing that has
ever been done.” Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the
Supreme Court, 101 Harv. L. Rev. 1388 (May 1988) (quoting the trial record at 1740), See also
Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and
Homicide Victimization, 37 Stan. L. Rev. 27, 38–49 (1984); and Kleck, Racial Discrimination in
Criminal Sentencing: A Critical Evaluation of the Evidence with Additional Evidence on the Death
Penalty, 46 Am. Soc. Rev. 783 (1981) (critiquing the Forrester opinion).

33

McCleskey v. Kemp, 481 U.S. 279, 319 (1987).

34

See Racial Justice Act of 1989, S. 1696, 101st Cong. §2922(b)(1) (1989).

35

Ky. Rev. Stat. Ann. § 252.3 (2001).

36

Georgia General Assembly, H.B. 324, (2001).

37

North Carolina General Assembly, B.G. 140 § 15A-2010, (2001).

38

Illinois General Assembly, H.B. 3396, (2001).

39

Despite instructions to the contrary, three counties, including Allegheny, did complete the survey
distributed on this topic by the Committee. The survey is attached in Appendix Vol. I.

40

Department of Justice Manual, Volume 7, 9-10.050, Federal Prosecutions In Which The Death
Penalty May Be Sought, see Appendix Vol. I.

227

7

CIVIL LITIGATION

230

INTRODUCTION

231

SYNOPSIS OF FINDINGS

232

OTHER TASK FORCE FINDINGS

236

INEQUITIES IN PERSONAL INJURY AND WRONGFUL DEATH
AWARDS TO WOMEN AND MINORITIES

251

INEQUITIES IN EMPLOYMENT DISCRIMINATION CASES

256

RECOMMENDATIONS

257

ENDNOTES

CIVIL LITIGATION

INTRODUCTION

230

Other state and federal task force reports, as well as the legal literature,
have found that race and gender may affect the outcome in personal injury
and wrongful death actions for women and minorities. This is partly due
to a reliance on gender- and race-based tables to determine loss of future
earning capacity. Claims brought by women and minorities may also be
devalued by unconscious biases of jurors and the judiciary; particularly at
risk are claims that involve intangible injuries or are related to non-market
work performed in the home. All of these factors affecting damage awards
and the evaluation of civil claims operate to the significant detriment of
plaintiffs who are women or persons of color. Further, as observed by the
Ninth Circuit Task Force in its report, The Effects of Gender in the Federal
Courts, subtle forms of gender bias can be widespread in employment
law litigation where “institutional impediments to female plaintiffs in civil
rights cases also exist.”1 Such biases can be especially devastating for
women of color who are caught in the double-bind of race and gender bias.

Focus of Inquiry
For its study of tort litigation, the Committee reviewed existing scholarly
literature2 and the reports of other state task forces around the country on
the effects of race and gender in calculating tort damages. In a further effort
to determine whether race and gender play a role in the outcome of tort
claim litigation, the Committee also held roundtable discussion sessions
with personal injury practitioners in Pittsburgh, Philadelphia and the
Wilkes-Barre/Scranton area, and reviewed transcripts of the public hearings
for testimony on tort litigation and on the use of statistical work-life
expectancy tables in the calculation of tort damages.
The Committee also gathered anecdotal evidence of the difficulties faced
in Pennsylvania by minorities and women in employment discrimination
litigation. In order to gain a better understanding of potential problems in
this area, the Committee held roundtable discussions for highly experienced
employment discrimination attorneys practicing in Philadelphia and
Pittsburgh. The Committee also reviewed the task force reports of other
states and conducted an informal assessment of the administrative
requirements for filing such claims under both Pennsylvania and New
Jersey law, comparing litigants’ access to the justice system in both states.

CIVIL LITIGATION

SYNOPSIS OF FINDINGS
Several common themes emerged from the research and investigation of the
Committee. The most important was that the race and gender of the
plaintiff can play a direct role in determining the value of personal injury
and wrongful death cases, and as a consequence, the claims of minorities
and women are often assigned a lower value than those of white males.
In addition to the use of outdated gender-based and race-based
standardized tables, such as work-life expectancies, which underestimate
lost earning capacity, the Committee determined that the devaluation of
claims of women and minorities stems from several other sources including:
1) the lack of racial diversity in jury panels across the Commonwealth,
which can foster situations in which gender-based and race-based
stereotypes lead to a reduction of awards to women and minorities;
2) an undervaluation of damage awards for minority tort plaintiffs based
upon the anticipated bias of the jury; 3) the lack of credibility accorded
to female and minority witnesses and experts; and 4) the undervaluation of
homemaker services.
Similar issues confront women and minorities in the trial of employment
discrimination cases. In particular, employment discrimination plaintiffs
have fewer remedies available to them in Pennsylvania state courts than
other litigants. The language of the Pennsylvania Human Relations Act, as
interpreted by the Supreme Court of Pennsylvania, precludes an award
of punitive damages and a trial by jury. In addition, the Supreme Court has
affirmed a denial of attorney’s fees to a successful plaintiff. The effect of
these interpretations has been to deter plaintiffs from filing their cases in
state court. This is particularly detrimental to rural residents and
minorities. If they desire a jury trial or if they cannot afford to hire an
attorney without the prospect of an award of attorney’s fees, plaintiffs have
no other alternative except to take their claims to federal court. For rural
plaintiffs, federal litigation involves a reduced likelihood of obtaining
counsel and higher litigation costs due to their distance from federal
courthouses. Minority plaintiffs are faced with the prospect of trying their
racial discrimination cases before less racially diverse juries with whom
they do not share a racial or cultural heritage. Moreover, in the Ninth
Circuit study on the effects of gender in the federal courts, focus group
participants reported that “most federal district court judges before whom
they appeared are less receptive to employment discrimination cases of all
types than they are to commercial cases with high monetary stakes.”3

231

CIVIL LITIGATION

OTHER TASK FORCE FINDINGS
At least 11 other state task forces have published reports that discuss
gender bias in civil damages.4 The consensus of these reports is that
women, as a class, receive civil damage awards that are often significantly
diminished by gender stereotypes.

232

The Final Report of the Colorado Supreme Court Task Force on Gender
Bias in the Courts, published in 1990, found that most attorneys who
participated in the task force survey agreed that gender bias is prevalent
in civil damage awards. One respondent stated:
“In several cases I have handled, there has been the assumption by
defense counsel, insurance adjusters, and settlement judges that a
woman’s claim for lost income or impairment of earning capacity is
worth less than a man’s…Men are almost universally referred to as
the ‘breadwinners’ in these situations, women almost never are.”5
Another Colorado attorney voiced the perception that women are simply
“taken less seriously than men as personal injury plaintiffs,” stating that
“their pain is viewed as hysterical, and adjusters, defense attorneys
and sometimes judges dismiss them.”6 The Colorado Report further noted
a significant difference in perception among male and female attorneys
regarding whether gender affects the way they are treated in settlement
conferences. Fifty-eight percent of the women who responded to
the Colorado attorney survey said their gender sometimes affects their
treatment in settlement conferences while 83 percent of the men
responding said it never did.7
In 1993, the Gender Bias Task Force of Texas survey respondents, public
hearing participants, and regional meeting participants all reported that
gender was a factor in how cases were tried and in the outcome of the trials.8
Specifically, “two-thirds of female attorneys, half of female judges, and a
substantial minority of male attorneys responding to the task force surveys
thought that the gender of the litigant affects both the litigation process and
case outcome.”9
The negative effect of gender bias in civil damage awards is not confined
to plaintiffs alone, however. In 1996, the Judicial Council of California
Advisory Committee on Gender Bias in the Courts, for example, reported
that disrespect for female witnesses and expert witnesses was common.10
“One woman attorney believed that she received lower damages in a case

CIVIL LITIGATION

involving claims of emotional distress because her client, her client’s treating
physicians, and her experts were all women. She [believed] that the totality
of the effect on the jury was to make her case less believable.”11 Some
respondents to surveys circulated by the Oregon Supreme Court/Oregon
State Bar Task Force on Gender Fairness in 1998 expressed concerns that a
client’s interests might suffer because of discrimination against a female
attorney. One client wrote: “I felt a male lawyer would get a better result.
I was discriminated against because I was a female.”12
It is important to note that the outcome of civil cases can be affected by
unconscious and often undetected prejudices of jurors. Yet there is very little
quantitative evidence to support this position. For the most part, equality
task forces have relied upon empirical evidence gathered through surveys,
roundtable discussions, public hearing testimony and other personal
accounts.
In the best-simulated empirical study to date of the effects of gender-based
stereotypes upon jury deliberations, potential jurors on call in Seattle in
1989 were asked to review written summaries of hypothetical wrongful
death cases. The only variables in the cases were the gender of the decedent
and the employment status of the surviving spouse. The study found that
both male and female jurors awarded substantially less in damages for the
death of a woman than for the death of a man—an average of $251,607
versus $750,036. When researchers probed the jurors for an explanation,
the jurors tended to exhibit different concerns based on the gender of the
decedent. In cases involving male decedents, jurors were far more likely to
consider future salary increases and promotions as well as the impact of
inflation on their future earnings. In cases involving female decedents,
meanwhile, jurors were more likely to award sums for pain and suffering.
The researchers concluded that the results of the study could be traced
to “stereotypes about employment remuneration based on longstanding
discrimination against women in the workplace.”13
Task force reports frequently cite another simulated empirical study
conducted by the Gender Bias Committee of the Massachusetts Supreme
Judicial Court in 1989. The study used two videotaped mock trials that
followed identical scripts, except that the plaintiff was a woman in one
videotape and a man in the other. Asked to indicate how they would decide
the case and the amount of damages, female respondents were found to
treat women and men equally. Male respondents over the age of 40,
however, gave the man higher awards for both diminished earning capacity
and pain and suffering.14

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The Nebraska Supreme Court Task Force on Gender Fairness in the Courts
examined a national database of more than 150,000 verified personal
injury verdicts collected from all over the United States. In two out of three
scenarios run in this national study, correcting only for the gender of the
plaintiff, plaintiff’s verdicts were higher for men than for women.15

234

In general, it seems clear that when damages are more closely linked to
economic variables, men reportedly fare better, while women can
sometimes fare better in other circumstances. Reports from task forces also
noted “the existence of gender stereotypes that might have an impact in
cases involving specific injuries.”16 Both the Minnesota Supreme Court
Task Force for Gender Fairness in the Courts and the Report of the Illinois
Task Force on Gender Bias in the Courts, for example, noted the
widespread belief “that female plaintiffs are more likely to receive higher
amounts for disfiguring injuries than male plaintiffs.”17 Over 80 percent of
the attorneys surveyed by the Colorado Task Force indicated that women
receive higher awards for disfigurement, compared to over two-thirds
reporting that men receive higher awards for loss of future earning
capacity.18 Similarly, an Iowa jury awarded twice as much for invasion of
privacy to the woman as to the man when a two-way mirror was found in
the couple’s motel room.19 On the other hand, with respect to damages for
loss of consortium, 50 percent of the attorneys surveyed by the Nebraska
Supreme Court Task Force on Gender Fairness in the Courts “reported
that husbands are awarded higher amounts for loss of consortium than
their wives.”20
Nebraska’s Task Force also reported that, in a construction accident
resulting in death, with a 30–39-year-old plaintiff with surviving children,
“the probable verdict amount for a female was $650,000 with a 70%
probability of a plaintiff’s verdict,” while the “probable verdict amount for
a male plaintiff was $1,025,000 with a 78% probability of a plaintiff’s
verdict.”21 The Illinois Task Force Report indicated that male plaintiffs
often benefit from perceptions that place a higher value on their loss of
strength or their capacity to perform manual labor.22
Several state task forces have specifically discussed racial bias in tort cases
involving minority plaintiffs, including the Washington State Minority
and Justice Task Force and the New York State Judicial Commission on
Minorities. An empirical study on racial equity and damage awards
conducted by the Washington State Minority and Justice Task Force found

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substantial disparities between settlement amounts in asbestos cases
involving minority and non-minority plaintiffs. After controlling for type
of disease, general occupation and age, the study found that minorities
received statistically significant lower average settlements overall than
non-minorities.23
As reported in the Report of the New York State Judicial Commission on
Minorities, a Rand Corporation study of 9,000 civil jury trials in Cook
County, Illinois, between 1960 and 1979 revealed that “among individual
litigants, blacks lost more often than whites both as plaintiffs and
defendants, and blacks received smaller awards.”24 More recently, studies
of civil litigation in New York and Oregon revealed that judges, attorneys,
and court personnel perceived that people of color received unequal
treatment in the civil litigation process.25 Commenting on both the New
York study and a 1996 Connecticut report, one law review article observed
that “Many attorneys, claims adjusters, and judges consider race when
assessing potential risks in tort cases.”26
In Iowa, the report from the Equality in the Courts Task Force noted the
inherent problem in applying class-based generalizations for women as a
group that do not fit the situation of the individual litigants. As a prime
example of bias in the assessment of damages for female or minority
plaintiffs, the report cited the use in tort litigation of actuarial tables or
other race-based or gender-based data, a topic that is discussed in greater
detail below.27

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INEQUITIES IN PERSONAL INJURY
AND WRONGFUL DEATH AWARDS
TO WOMEN AND MINORITIES
THE USE OF GENDER-BASED AND RACE-BASED TABLES

236

There are three distinct problems with using race- and gender-based tables
to compute work-life expectancy and wage losses. First, they are frequently
outdated and represent patterns of employment that no longer hold true
for women and minorities. Second, the use of separate tables for men and
women and for whites and people of color relies on overly broad
generalizations about women and minorities as a group. And third, the use
of such tables is unsound as a matter of social policy because it perpetuates
inequities in pay and other forms of employment discrimination
experienced by women and minorities, and because use of the tables can
serve to impoverish members of low- income groups who suffer disabling
injuries from severe accidents.

“This means that if two children, a boy and a girl, with
the same education prospects were each permanently
disabled by an injury, the girl’s award would be only
65 percent of the boy’s award, a disparity attributable
solely to gender.”
—Professor Martha Chamallas

Professor Martha Chamallas, Robert J. Lynn Chair in Law, Moritz College
of Law, The Ohio State University, has written numerous articles detailing
the devaluation of women’s claims in the courts. In one of her articles
entitled, The Architecture of Bias: Deep Structures in Tort Law, Chamallas
noted a study of wrongful death cases between 1984 and 1988, which
found a significant disparity in jury awards for male/female decedents; the
average male decedent was awarded $332,166 while the average female
decedent was awarded only $214,923.28 Further, she noted the severe
negative consequences of using gender and race-specific data for tort
plaintiffs in her article, A Woman’s Worth: Gender Bias in Damage
Awards, where she showed that the projected lifetime earnings, discounted
to 1990 present value, of a female college graduate have been estimated to
be $1,174,772, and that of a male college graduate, $1,815,850. “This
means that if two children, a boy and a girl, with the same education
prospects were each permanently disabled by an injury, the girl’s award
would be only 65 percent of the boy’s award, a disparity attributable solely

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to gender. The size of the male-female disparity is not surprising given the
size of the current wage gap between men and women of all races…Relying
on current wages means that predictions about future wages will be tied to
present disparities. Use of these data also allows discrimination on one
area—setting pay rates—to influence valuation in another area—
calculating personal injury awards.”29
Expert testimony at public hearings

At two of the Committee’s public hearings, the Committee heard from
two esteemed Pennsylvania economists, Robert A. Wallace of Gannon
University and James Kenkel of the University of Pittsburgh. Both testified
about the use of race- and gender-based instruments for the calculation
of civil damages.

Wallace testimony
Wallace, the director of the MBA program and assistant professor of
finance in the Dahlkemper School of Business at Gannon University in Erie,
PA, has testified extensively in wrongful death, personal injury, and
wrongful termination cases. He practices “forensic economics,” the
application of economic theory to the problems of valuation presented
by litigation.
In his testimony at the Erie hearing, Wallace noted that in assessing losses,
the economist takes into consideration statistical information regarding the
wronged party, although the statistical information is often limited and
requires the use of estimates based on external data from sources such as
government databases. The estimated work-life is the projected length of
time that an individual is expected to participate in the workforce, an
estimate influenced by age, gender, race, and education. Work-life estimates
were published in 1982 by the Bureau of Labor Statistics (BLS) and most
recently updated and expanded in 1986. In other words, as Wallace pointed
out, the most recent federal estimates of work-life expectancy are more
than 15 years old.
In work-life estimates, Wallace noted the importance of the Labor Force
Participation Rate, which is the percentage of persons 16 years of age or
older who are either employed or actively seeking employment. This rate
is determined by using information collected by Current Population
Studies (CPS), a monthly household survey conducted for the BLS. Wallace
indicated that according to CPS data, the labor force participation for
females has increased dramatically since the work-life estimates were last
updated. Because the old set of figures significantly understates the length

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of the work-life for women, earned income loss estimates for women are
likewise understated, according to Wallace.

238

In the absence of official updates of the work-life estimates, economic
researchers have created work-life tables based on unpublished CPS data.
These tables show a large increase in work-life estimates for females. For
example, a 25-year-old white woman engaged in the workforce is expected
to work 24.9 years, according to the most recent BLS study estimates based
on the 1986 figures. A 1998 update by Ciecka, Donley and Goldman
estimated a work-life of 29 years for the same individual, representing a
16.5 percent increase. For both African American and Latina women,
Ciecka, Donley and Goldman calculated a 12 percent rate increase from the
BLS 1986 study to 1998. Wallace further noted that the outdated BLS
work-life estimates also affect fringe benefit losses, which are often
calculated as a percentage of earned income losses. Fringe benefits currently
average more than 22 percent of wages, so the shortfall is substantial.
Wallace testified that forensic economists generally must choose between
outdated estimates and more current and accurate estimates that are not
widely accepted in practice. Experts may be reluctant to use more current
data, out of fear that the courts will reject any estimate of economic
loss that is based on unofficial sources.

Kenkel testimony

“The problem of inaccurate life expectancy tables and
work-life expectancy tables for females and minorities
can be resolved through the use of a single inclusive
table that incorporates the work-life estimates of all
Americans as a starting point for calculating losses in
work-life expectancy.”
—Professor James Kenkel

Kenkel, a professor of economics at the University of Pittsburgh, has
testified more than 500 times for plaintiffs and defendants in about
20 different states and in federal courts. At the Pittsburgh public hearing,
Kenkel suggested that the problem of inaccurate life expectancy tables and
work-life expectancy tables for females and minorities can be resolved
through the use of a single inclusive table that incorporates the work-life

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estimates of all Americans as a starting point for calculating losses in worklife expectancy. The difference in work-life calculations between men and
women “is incredible,” according to Kenkel. For example, an 18-year-old
white man who just graduated from high school has a work-life expectancy
of about 39 years. The data show that he will actually work 39 years. For
a woman, the work-life estimate is about 28 years because of expectations
that she will have children, then drop out of the workforce.
“The problem with this work-life table is that it’s based on the experience
of a woman who is basically like my mother,” Kenkel testified. “When
I was born, my mother said, ‘I’m going to drop out of the workforce’ and
never went back to work again, which was the experience of everybody like
her. My daughter is exactly the opposite. She has three little children, and
five months after the kids were born, she went back to work. This work-life
table does not take into account the change in the behavior of women.”30
Similarly, Kenkel noted the large disparity between white males and African
American males in the work-life tables. While the tables show a difference
in average life expectancy for white and African American males, Kenkel
questioned why a white male and an African American male who were
both age 40 and in perfectly good health should be distinguished from each
other in terms of their life expectancies, and why a common life expectancy
table could not be used to compensate fairly the members of both races
who differ from the norm. Kenkel used the same analogy in reference to
work-life estimates that assume an African American male will work for a
shorter period time than a white male. Kenkel asked why, if both men were
40-years-old and had the same level of education, the African American
male would necessarily have a shorter working life than the white male.

“The problem with this work-life table is that it’s based
on the experience of a woman who is basically like my
mother,” Kenkel testified. “When I was born, my
mother said, ‘I’m going to drop out of the workforce’
and never went back to work again, which was
the experience of everybody like her. My daughter
is exactly the opposite.”
—Professor James Kenkel

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Economic expert testimony from other states

240

The Vermont Task Force on Gender Bias in the Legal System also sought
testimony from economists in that state regarding the use of statistical
tables in the determination of loss of future earning capacity and work-life
expectancy. The testimony reviewed by the Vermont task force was
remarkably similar to that of Drs. Gamble and Kenkel, set forth above.
In its report, the task force stated that the testimony established that
women’s work-life expectancy and loss of future earnings are calculated
from “patterns or trends developed one or two decades ago” and that the
trends “do not reflect the increase in the number of women in the paid
labor force during the past two decades.”31 Just as in Pennsylvania, the
report went on to note that while the economic experts recognize that the
historical trends relied upon are outdated and underestimate a woman’s
work-life expectancy or earning capacity, they frequently continue to rely
on that outdated information. The report stated that the “credibility
attributed to historical data within the field of economics operates as a
disincentive to calculating new estimates premised on women’s present
economic and employment condition.”32 One expert who was quoted in
the report explained the dilemma succinctly as follows:
“I like historical data to back up what I am doing. However,
if I see a young woman who is twenty-five entering the legal
profession, and has in her own past, a very short history, but a
history that is more typical of what [a] male’s history is, then
I will say, will she act like females have in the past, or is she part
of a changing group. I can make that judgment as an expert
witness and I think she behaves differently. However, I know
when I do that and if this case gets to court, I will be challenged
on that position…So there is a tendency to…just go with
historical data and if it was a woman lawyer, I would not have
her wages increased as rapidly as a male lawyer in the same
position.”33
Roundtable findings

In roundtable discussion sessions with personal injury and wrongful death
practitioners from around the Commonwealth, attorneys in Philadelphia
and in Pittsburgh raised the issue of the inequities inherent in the use of
race-based and gender-based tables. The attorneys echoed the economists
in expressing concern about the failure of U.S. Department of Labor
statistics to reflect recent gains in work-life expectancy and income,
especially for women, thereby perpetuating inequalities in pay rates and job
opportunities experienced by women and minorities. Several participants

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recommended that race-neutral and gender-neutral tables be used in
calculating civil damages, and that a standard jury instruction be applied
in civil cases to incorporate such tables as the approved method for
calculating damage awards.
Compensation fund for victims of September 11

Most recently, the special master of the Federal Compensation Fund set up
for the victims of September 11 dealt with the issue of using work-life
expectancy tables to calculate damage awards for World Trade Center and
Pentagon casualties. The master decided to base the awards on updated
work-life expectancy tables by Ciecka, Donley and Goldman, 34 noting that
“[t]hese are the most recent and generally accepted tables of work-life
expectancy regarding the general population available.”
Significantly, the special master also decided to use work-life expectancy for
“all active males” to compute the awards for both men and women. The
master took this approach because the use of male tables would result in
higher awards for women without lowering awards for men, and would
also “accommodate for potential increases in labor force participation rates
of women.”
The decisions of the special master appear to reinforce the expert testimony
of Kenkel and Wallace by rejecting outdated gender-based and/or racebased tables as unfair to accident victims. Specifically, the special master’s
decision to use updated, unofficial data rather than the 1986 tables
indicated the widespread belief that the 1986 tables had become inaccurate.
By using male tables for both male and female victims, the master moreover
assumed that the male award came closest to representing the true value
of the injury.
Constitutional issues raised by the use of race-based
and gender-based tables

Previous federal cases such as Frankel v. United States 321 F.Supp. 1331,
1337-38 (E.D. Pa. 1970) and Caron v. United States, 410 F.Supp. 378
(D.R.I. 1975) represent the traditional gender-based approach to
calculating damages. In these two cases, the courts authorized diminished
awards for women based upon the assumption that women work for fewer
years compared to men, and that they earn less than men when they work
outside the home.35

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In the few reported cases relating to race-based tables, the outcome was
similar to that of the gender-based cases. As Chamallas noted in her article,
“The courts and the parties seemed to accept the race-based statistics
uncritically and there was no discussion of whether race-neutral data would
be preferable.”36 Courts have permitted experts to rely on race-based data
to calculate work-life expectancy, and in one early case the court found that
it was improper to base an estimate upon race-neutral data.37

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The traditional approach to calculating damages, however, stands in
tension with Constitutional principles. Since Korematsu v. United States,
323 U.S. 214, 223 (1944), any state action that explicitly classifies a group
of people by race has been considered a violation of the Equal Protection
Clause of the 14th Amendment. Such actions are automatically “suspect”
and subject to “strict scrutiny,” the stringent standard of review that
requires the state to prove that the classification is necessary to further a
compelling state interest. In its 1976 decision, Craig v. Boren, 429 U.S. 190
(1976) the Supreme Court, according to Chamallas, “settled upon an
intermediate level of scrutiny to evaluate the constitutionality of gender
classifications.”38 Gender-based classifications, in other words, must be
demonstrated to be substantially related to an important government
interest.
Thus, economic tables that are broken down by race and gender may, in
fact, be unconstitutional. The use of race-based data to estimate the future
earning capacity of an individual, in particular, does not warrant creating
an exception to the ban on racial classifications. The argument for using
such tables is usually portrayed as a method of accurately portraying reality
for whites and African Americans in terms of work-life expectancy.
However, the U.S. Supreme Court has already ruled that the government
may not “neutrally” reflect private prejudices in drawing racial
classifications. See Palmore v. Sidoti, 466 U.S. 429 (1984), in which the
Court held unanimously that it was improper for the state courts to
consider the race of the stepparent in a change of custody matter, despite
the relevance of race to the issue of the best interests of the child. As
Chamallas observed, “To the extent that Palmore prohibits the government
from using racial categories, even when they function as good proxies
for other legitimate variables, the objective of accuracy, such as in the use
of race-based tables, is subordinated to the goal of racial equity.”39
Similarly, the U.S. Supreme Court, using the prevailing intermediate
scrutiny standard for explicit gender-based classifications, has struck down
a number of statutes that presumed wives were economically dependent on
their husbands and that conditioned financial benefits on a spouse’s

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gender.40 The Court refused to allow gender to be used as a basis for
assuming dependency, despite strong statistical evidence that most wives
were, in fact, financially dependent on their husbands. The Court’s
approach in equal protection cases generally rejects overly broad
generalizations while providing legal support for women in non-traditional
roles. In City of Los Angeles v. Manhart, 435 U.S. 702 (1978), for example,
the Court concluded that an insurance plan violated discrimination
principles by requiring women to make larger contributions to a pension
fund because, as a group, they lived longer than men. In its decision, the
Court rejected the tendency “to preserve traditional assumptions about
groups rather than thoughtful scrutiny of individuals.”41 The U.S. Supreme
Court has thus demonstrated its concern for individualized equity,
providing strong support for an equal protection challenge to gender-based
tables as a predictor of future earning capacity.
Because the constitutional guarantee of equal protection protects
individuals only against government or state action, a finding of sufficient
state action is required before any constitutional challenge can be raised.42
Chamallas, who has written extensively on this subject, suggests that one
possible reason there has not yet been a constitutional challenge to the
use of race- and gender-based economic data is that counsel may believe
there is no state action involved in this process.43 In her 1994 article,
Questioning the Use of Race-Specific and Gender-Specific Economic Data
in Tort Litigation: A Constitutional Argument, she argues that state action
is present when experts rely on gender-based or race-based tables in court:
“The pivotal question then becomes whether admission of an
expert’s testimony based on race-based or gender-based
statistics constitutes sufficient state action to permit such a
constitutional challenge. My principal argument for finding
state action is that it is impossible to separate the use of the
statistics from the underlying legal standard in the case. When
the court allows an expert to testify as to the plaintiff’s future
earning capacity, it makes a determination of relevancy and an
implicit judgment about the substance of the common law of
damages. The court’s action authorizes the jury to base its
decision on the race or gender of the plaintiff, in effect
establishing a common law rule that the future earning capacity
of a plaintiff depends upon the plaintiff’s gender and racial
classification. If such a standard were explicitly embodied in a
statute, the legislation would clearly constitute state action. The
outcome should not be different simply because the governing
legal standard is a common law or nonstatutory standard…

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state action occurs when the opinion of the economist,
admittedly a private actor, is transformed into an expert
opinion, sanctioned by the state at the moment that the trial
judge certifies the witness as qualified. Very much like the
regulation of peremptory challenges, there are statutes and rules
governing the use of experts, and permitting them to express
opinions and draw conclusions that other witnesses may not.”44

244

In support of her argument, Chamallas also cites the U.S. Supreme Court
decision in Edmonson v. Leesville Concrete Company, 500 U.S. 614
(1991), where the Court held that the use of race-based peremptory
challenges by a private litigant in a civil case was unconstitutional. The
Court also found that the use of gender-based peremptory challenges was
unconstitutional in J.E.D. v. Alabama, 511 U.S. 127 (1994).
There are signs that the doctrine is evolving with respect to these matters.
The most significant case to confront the issue of gender-based and racebased statistics is Wheeler Tarpeh-Doe v. United States, 771 F. Supp. 427
(D.D.C. 1991). There, the United States District Court for the District of
Columbia dealt with the issue of how to categorize the earning potential of
a bi-racial male child. When the plaintiff’s expert used census tables to
determine the income of an American male college graduate, the
defendant’s expert argued that the appropriate measure was “the average
earnings of black men, not those of all men.”45 The court refused to decide
the issue of the child’s race and rejected the use of race-based or genderbased statistics in the calculation of his damages. Ruling that only
race-neutral and gender-neutral data should be used, the Court based its
calculations of damages on the average earnings of all U.S. college
graduates, without regard to sex or race.

ADDITIONAL FINDINGS
Homemakers’ services are consistently undervalued
by the courts.

Several state task forces studying gender bias issues have also examined the
issue of the valuation of homemaker services as it affects the assessment of
damages for female personal injury plaintiffs. The New Jersey Supreme
Court Task Force on Women in the Courts concluded that homemakers were
under-compensated for lost earnings because “They worked without wages
and…[that] the substantive rules of law that guide judges and juries in fixing
personal injury awards are so closely tied to wage-earning as to skew the
outcomes for full- or part-time homemakers.”46

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Similarly, the Minnesota Gender Fairness Task Force concluded that it was
“the clear consensus that homemakers receive less than the economic value
of their services in actions involving claims for lost wages.”47 The task force
report also commented on the effect that the under-valuation of homemaking
services has upon employed women. A Minnesota attorney was quoted as
reporting, for example, that “[w]here the homemaker, usually a female, also
works outside the home, it has been very difficult to get the defense to
recognize that they owe anything more than 10 to 15 hours per week for loss
of value of those services in addition to wage loss. In practice, this means we
routinely receive offers of $40 to $60 per week to compensate a working
mother for the entire amount of time she spends each week performing her
duties as a homemaker. This is patently absurd, but it is very pervasive.”48
Of the attorneys responding to the Colorado survey, “only 14 percent
believed that homemakers always or almost always recover the economic
value of their lost services, and over half of them believed that women
employed outside the home receive higher awards for pain and suffering
than homemakers do.”49
The findings of the New Jersey, Minnesota, and Colorado gender bias
studies were echoed by the Vermont Task Force on Gender Bias. The task
force found that the data used by economists in computing future earning
capacity and work-life expectancy for women frequently were based on
historical analysis and did not reflect current and future trends in the
workplace. 50 Furthermore, the report stated, “Judges agree that
homemakers are not adequately compensated for their lost services.”51 The
task force found that in response to its survey, “80.2 percent of attorneys
stated that homemakers ‘never’, ‘rarely’ or ‘sometimes’ recover the value of
these services; and half of the responding judges indicated that homemakers
‘never’ or ‘rarely’ recover the economic value of those services.”52
Those findings from outside Pennsylvania are consistent with statements
provided to the Committee by roundtable participants who expressed
concern with the undervaluation of a female litigant’s domestic work, such
as childcare and housework responsibilities. Some attorneys also referred
to a possible backlash developing among juries when presented with the cost
of alternate day care for children as a means of assigning a specific monetary
value to the childcare performed by women in their homes.
In an extensive article, Turning Labor Into Love: Housework and the
Law,53 Professor Katharine Silbaugh traces the transition in the past
30 years in the concept of the home as a site of consumption and leisure to

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246

a site of production, concluding that, “housework produces wealth that is
critical to a family’s material well-being.”54 Silbaugh cites time use studies
showing that, after paid work and unpaid work are added together, women
perform more hours of work than men; women perform substantially
more hours of unpaid housework; and unpaid housework accounts for a
substantial percentage of women’s overall work hours. Based upon these
figures, she writes, “The heightened significance of the legal treatment of
housework to women is apparent.”55 Silbaugh also highlights the
transformation in economists’ understanding of the economic value of
housework, citing recent economic studies that estimate the value of
housework in the U.S. as 24 to 60 percent the gross domestic product.56
Finally, Silbaugh examines the legal response to home labor and concludes
that the law—and women in particular—would benefit from a recognition
of the full economic value of unpaid labor in the home.
The lack of diversity in Pennsylvania juries
can reduce awards to minorities.

Participants in roundtable discussion sessions throughout the
Commonwealth expressed concern about the lack of minority jurors in all
jurisdictions except Philadelphia County. Speakers noted in particular the
limited number of minorities in the jury pools and their intentional removal
through the use of peremptory strikes.57 One Pittsburgh attorney noted
that, in the past five years, he has represented more than 20 African
American plaintiffs in civil trials in state and federal courts. In all of the
cases combined, out of hundreds of prosepective jurors, there were “no
more than six African Americans present in the jury pools” and “only two
African Americans were actually selected as jurors.”58 Another Pittsburgh
participant stated that the majority of jurors in Allegheny County are from
suburban areas and are older, white, and often unwilling or unable to set
their prejudices aside. The consensus of the participants was that, at best,
many white jurors failed to empathize with minority plaintiffs; at worst,
the white jurors awarded lower damage awards to minorities on the
assumption that the amounts would satisfy minority plaintiffs
unaccustomed to large sums.
Roundtable participants also expressed concerns about the ineffectiveness
of Batson challenges to remedy the lack of juror diversity. In addition,
plaintiffs’ attorneys reported receiving racist comments from defense
attorneys about the consequences of the September 11 attacks and their
implications for Arab or Muslim plaintiffs who might suffer backlash in
civil litigation.

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Gender-based and race-based stereotypes affect
jury deliberations and can serve to reduce awards
to women, especially women of color.

In 1998, the annual conference of the Pennsylvania Bar Association offered
a panel entitled The Impact of Gender in the Evolution of Tort Law which
explored “tough issues in devaluation of lives, of activities and the potential
of women in courtrooms involved in civil cases.” One of the panelists,
Professor Regina Austin of the University of Pennsylvania Law School,
spoke about a case in Florida where an African American female plaintiff
sued the owner of a commercial vehicle who struck her car while changing
lanes. When jurors were interviewed after a very small verdict was
returned, they stated that they “did not want to award anything to a fat,
Black woman on welfare who would simply blow the money on liquor,
cigarettes, the lottery, or bingo.”59 Significantly, the plaintiff in that case
was not on welfare and “there was little evidence presented as to her
lifestyle, spending habits or leisure time.”60 Such damaging perceptions and
misperceptions can also be found in Pennsylvania courts. The Honorable
Frederica A. Massiah-Jackson, of the Philadelphia Court of Common Pleas,
another panelist, told of the time she was assigned to review a Philadelphia
case that had resulted in a hung jury. She explained that the file
memorandum from another Philadelphia judge identified the reason
for the hung jury:
“According to all counsel, this was a racially divided jury that
returned its verdict at the same time as the O.J. Simpson
trial verdict. The plaintiff is (according to plaintiff’s counsel)
a grossly overweight female who did not present well to
the jury.”61
The courts have not yet acted effectively to curb the effects of gender and
race bias in civil litigation. Indeed, plaintiffs’ attorneys have sometimes been
prevented from cautioning jurors not to allow their preconceptions or
unconscious biases to influence their verdict. For example, in Stanton v. Astra
Pharm. Prods. Inc., 718 F.2d 553, 578–579 (3d Cir. 1983), the plaintiff’s
counsel made an explicit reference to race before an all-white jury in the
Middle District of Pennsylvania, stating in part “[w]e were concerned about
the effect of having black people come to an area where there are not many
black people and expecting to get justice from a jury which is mostly white
people.”62 The Third Circuit expressly disapproved of this approach, calling
it “beyond the realm of appropriate advocacy.” The decision went on,
“[t]here must be restraints against blatant appeals to bias and prejudice.
Justice must not be based on racial sympathy or animosity.”63

247

CIVIL LITIGATION

248

This response is indicative of a general reluctance of the courts to confront
racial bias in the courtroom. The Maryland Court of Appeals, however, has
recognized that it is sometimes necessary to call attention to race in order to
prevent racially-biased decision-making. In a 1995 decision, the Maryland
court held that the trial court—in a case involving an African American
defendant and white arresting officer as the only witness to the crime—
had abused its discretion by refusing to ask a voir dire question regarding
racial or ethnic bias.64 Other courts have taken the view that “questions
about race should not be asked if the case does not involve race as a
central issue.”65
Roundtable participants emphasized the potentially important role that the
judiciary can play in setting a tone in the courtroom of zero tolerance of
racial and gender bias. The consensus of the participants was that the judge
should make an anti-discrimination warning at the outset of a case,
rather than waiting to include the warning in jury instructions at the end
of the trial.
The influence of racial bias on settlement
negotiations in cases involving minorities
must be openly acknowledged.

“Many attorneys, [insurance] adjusters, and judges
consider race when assessing potential risks in tort
cases. They believe that race will affect the outcome of
a tort case because they expect judges or jurors to
reflect normal racism that governs most of our society’s
decision making.”
—Professor Frank McClellan

Most roundtable participants agreed that the majority of the state judiciary
did not exhibit overtly biased attitudes in the course of litigation. Some
participants, however, particularly in Philadelphia and in Pittsburgh,
expressed concern with the influence racial bias has upon settlement
negotiations in cases involving minority plaintiffs. They described the
pressure placed upon minority plaintiffs to reduce their settlement demands
based upon the belief of the attorneys, insurance adjusters and the judges
that jurors’ racially-biased attitudes would influence the outcome of
the trial and reduce the likelihood or the amount of a verdict for the
minority plaintiff.

CIVIL LITIGATION

In his article, The Dark Side of Tort Reform: Searching for Racial Justice,
Frank McClellan, professor of law at Temple University Law School,
discussed the role played by race in ordinary tort cases and the neglect of
this issue in the debate over tort reform. Professor McClellan emphasized
the importance of a public acknowledgement of a widely shared perception
that “many attorneys, [insurance] adjusters, and judges consider race when
assessing potential risks in tort cases. They believe that race will affect
the outcome of a tort case because they expect judges or jurors to reflect
normal racism that governs most of our society’s decision making.”66

249
As an example of the influence that race has in the disparate treatment of
plaintiffs during settlement negotiations, McClellan discussed a case in
which he was involved as an attorney representing one white and one
African American plaintiff, both physicians, with identical claims against a
computer software company. The defendants were also represented by the
same defense counsel. Despite the identical nature of the claims and facts of
the cases, the defense made a settlement offer to the white plaintiff but not
to the African American plaintiff. Defense counsel compounded the racist
undercurrent permeating the case by asking why the referral of such a
complex commercial case had been made to an African American attorney
and remarking about how unusual it was. The referring attorney—an
African American from a large firm—responded by informing the defense
attorney that the attorney was experienced and he himself was African
American. Defense counsel was reportedly taken aback by the comments,
although the exchange had no apparent effect on his settlement
negotiations strategy.
McClellan emphasized the importance of openly acknowledging that race
does play a role in tort cases in order to effectuate true tort reform. He
stated that in his experience and that of many other attorneys and litigants
of color, “the race problem impacts on every aspect of a tort claim,
adversely affecting lawyers, clients and the public conception of justice…
the approach of pretending that race has nothing to do with tort law
compounds the evil by allowing private bias to control.”67

CIVIL LITIGATION

Testimony by women and minorities is often
discounted by courts and juries.

250

As discussed above, surveys and empirical research both show that judges
and juries have been known to discount the testimony of women and
minorities, whether such testimony is on their own behalf, or as a witness
or an expert.68 The same theme emerged from roundtable discussions that
examined the poor treatment of minority and female attorneys, witnesses
and experts in the course of civil trials. Specifically, roundtable participants
expressed concern about the lack of credibility given to women and
minority witnesses and experts who testify in civil cases in Pennsylvania.
In the Philadelphia roundtable discussion, an attorney recounted a Delaware
County case in which the testimony of a white plaintiff with brain damage
was corroborated by a third-party African American witness. Also testifying
for the plaintiff was a female expert witness. In interviews following the
verdict, members of the all-white jury indicated that they had disregarded the
testimony of both the African American witness and the female expert
witness. With such cases in mind, attorneys say they take the race and gender
of potential expert witnesses into consideration when choosing witnesses to
put on the stand. An important consideration in the decision is the attorney’s
understanding of how a minority or female expert will be regarded by the
jury and the court.
Female attorneys reported that some judges in Pennsylvania treat them
with less respect—and address them less formally—than male attorneys.
According to the female attorneys, the informality and lack of respect extend
to female witnesses. The phenomenon is most common, the attorneys say,
in the small, rural counties where female and minority attorneys are still rare.
In the same vein, one attorney said judicial bias occasionally made it more
difficult to have evidence entered into the record when representing
minorities than when representing white clients. The perceptions of these
female attorneys about their treatment by the judiciary echoes the
experiences of the female attorneys who participated in the Committee’s
focus groups on perceptions of gender bias in the courtroom, discussed
extensively in this report’s chapter on Perceptions and Occurrences of Racial,
Ethnic, and Gender Bias in the Courtroom.

CIVIL LITIGATION

INEQUITIES IN EMPLOYMENT
DISCRIMINATION CASES
ROUNDTABLE DISCUSSIONS
Roundtable discussion sessions on employment discrimination litigation
were also conducted by the Committee. These sessions were similar to
the personal injury discussion sessions. Approximately 50 to 60 attorneys
were invited to sessions in Pittsburgh and Philadelphia to discuss their
perceptions of whether racial and gender bias has affected their practices
and clients in employment discrimination litigation. Among the participants
were some of the most highly regarded and experienced attorneys in this
area of law in the Commonwealth. The focus of the discussion was state
court employment litigation, rather than federal litigation that constitutes
the bulk of cases handled by most employment lawyers. Clearly, more
empirical research is needed on these issues and while anecdotal
information is no substitute for that, the collective experiences of this
distinguished group of practitioners who regularly represent the female and
minority citizens of the Commonwealth in their claims of discrimination
was considered by the Committee to be very valuable information for the
Court to have. In particular, the manner in which this class of citizens is
treated by the justice system speaks volumes about the fairness of the
system and its responsiveness to complaints of inequitable treatment.
Several major themes emerged from these sessions:
Effects of preclusion of punitive damages, trial by jury,
and attorney’s fees under the PHRA

The consensus of the [roundtable] participants
was that the PHRA should be amended to make these
fundamental rights [to a jury trial and to recover
punitive damages] explicit.
The Supreme Court of Pennsylvania’s decisions in Hoy v. Angelone, 554
Pa. 134, 720 A.2d 745 (1998) and Wertz v. Chapman Township, 559 Pa.
630, 741 A.2d 1272 (1999) were the subject of much discussion at the
roundtables. In Wertz, the Court construed the Pennsylvania Human
Relations Act to eliminate the right to a jury trial in cases brought pursuant
to the Act. In Hoy, the Supreme Court concluded that the PHRA did not
permit a recovery of punitive damages. It also affirmed a lower court’s
denial of attorney’s fees to a successful plaintiff despite statutory language

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that clearly indicates that attorney’s fees should be awarded. The consensus
of the participants was that the PHRA should be amended to make these
fundamental rights explicit. The participants noted that, in their view, this
interpretation is contrary to the broad interpretation given almost identical
language in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000
et seq., by the United States Supreme Court and other federal courts,69 and
by other state appellate courts which have broadly interpreted their
corresponding statutes.70

252

The roundtable participants were particularly concerned with the effect
of these decisions upon residents of rural counties. Attorneys reported being
contacted on numerous occasions by rural plaintiffs who had valid claims
under the PHRA but had been unable to secure representation from local
attorneys. Those attorneys recognized the disadvantages to their clients of
bringing cases into state court because of the absence of suitable remedies
under the PHRA, particularly with regard to the right to a jury trial
and the award of attorney’s fees. The only other option for those plaintiffs
was to pursue their claims in federal court, yet the distance from rural areas
to the federal courts further reduces the likelihood of obtaining local
representation. Frequently, local counsel is unfamiliar with federal court
practice and/or cannot recover the travel expenses to a distant court. The
same travel expenses, as a practical matter, prevent claimants from securing
representation by urban attorneys. Many rural residents are low-wage
employees who cannot afford to make the many trips associated with
litigation of their claims. The result is that the rural claimants may not
receive representation on otherwise meritorious cases due to the lack
of state court remedies.
Additionally, roundtable participants noted that the language of the PHRA,
coupled with the absence of an explicit statement of suitable remedies, has
further limited the ability of minorities, in particular, to have a racially
diverse jury decide their cases. The participants indicated that while there
are serious problems with the lack of racial diversity on juries in the
Commonwealth of Pennsylvania,71 with the exception of Philadelphia
County, it has been their experience that the federal system has far fewer
minorities on its jury panels. Without access to state courts and their
comparatively more racially diverse jury panels, minorities throughout the
Commonwealth are denied the opportunity to try their employment
discrimination claims before jurors who share their racial and ethnic
heritage and their sensitivity to acts of racial discrimination.

CIVIL LITIGATION

Effect of restrictions on attorney’s fees on
low-income claimants

Many roundtable participants expressed concern for the individuals that
the PHRA and the federal employment discrimination statutes were
primarily intended to protect. Participants agreed that the expected amount
of recovery is the major factor in an attorney’s decision to accept a case.
Because damages in such cases are based on employee wages, however, the
lower the claimant’s salary, the less likely the attorney is to take the case.
White males—generally the higher wage earners— therefore have a greater
chance of obtaining representation than do the women and minorities
whom the laws were primarily designed to protect. Roundtable participants
estimated that they turn down approximately two-thirds of potential cases
because of their low value or because plaintiffs are unable to pay costs or a
retainer. Many plaintiffs who have legitimate claims are thus left without
representation.
Even higher-wage employees are often unable to afford employment
litigation because of its complexity and the aggressive manner in which
employers defend these cases. Participants remarked upon the vast number of
motions that were filed by the defense in these cases. These types of litigation
tactics, generally aimed at burdening plaintiffs’ attorneys who commonly
take those cases on a contingent basis, often serve to reduce the likelihood
of a plaintiff obtaining representation on an otherwise valid claim.
Participants also emphasized that the lack of remedies in state court leads
claimants to seek recourse in the federal court system. Participants reported
that some of the federal judiciary believe employment cases “clog the circuit”
and often involve emotionally charged parties who misinterpret facts. The
roundtable participants also spoke of experiences in which they had their
attorney’s fees petitions substantially reduced by the federal bench, which
further diminishes the likelihood of plaintiffs with legitimate claims
obtaining representation.
Complexities of employment discrimination law

Employment discrimination law can be very complex and specialized, and
roundtable participants reported that some members of the state judiciary
lack a fundamental understanding of this difficult area of law. According to
participants, the state judiciary’s lack of familiarity fuels their tendency to
grant summary judgment in favor of the defendant, making it difficult for
plaintiffs to obtain relief. Roundtable participants also noted that the
assignment system in most counties does not allow the trial judge to have
any involvement with an employment discrimination case prior to the trial.

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CIVIL LITIGATION

This exacerbates difficulties because the assigned judge is prevented
from becoming familiar with the case and the law before the trial begins.
Roundtable participants viewed this as a significant problem in
employment discrimination cases.

254

Roundtable participants also remarked on the occasionally open hostility
of some judges toward employment discrimination plaintiffs in particular
counties. Participants speculated that the attitude might stem from crowded
dockets, or perhaps the concern among the judiciary that it is bad policy to
rule against employers in a Commonwealth where businesses are difficult
to retain. Whatever the reason, the hostile attitude has a chilling effect, not
only on plaintiffs and the exercise of their right to seek redress for their
injuries, but also on attorneys who become less willing to take a case when
the chances of success, regardless of the merits of the case, are diminished.
Some roundtable participants said judicial attitudes toward female plaintiffs
in employment discrimination cases were as bad, or worse, than the negative
attitude toward minority males. Participants observed that some judges
assign far less credibility to female claimants than they do to males.
One roundtable participant noted an exception, describing his experience
with one county’s judiciary as “wonderful” while he was litigating a
Section 1983 civil rights action.
County court employees

Roundtable participants expressed concern that the Court’s decision in
Ison v. Erie County Courts, 546 Pa. 4, 682 A.2d 1246 (1996), prohibiting
the Pennsylvania Human Relations Commission from hearing a discharged
court employee’s claim, has left that class of employees with few options
for seeking redress for the unlawful employment actions of their employers.
Administrative requirements under PHRA

New Jersey’s Law Against Discrimination (NJLAD), N.J. Stat. Ann §10:5-1
et seq., serves as a useful counterpoint to the PHRA with respect to
administrative restrictions. For example, before an action can be brought
in Pennsylvania under the PHRA, an employee-claimant must first file an
administrative complaint with the Pennsylvania Human Relations
Commission (PHRC). In Woodson v. Scott Paper Co., 109 F.3d 913
(3d Cir. 1997), the Third Circuit ruled that while an employee could
proceed in court under Title VII without first filing with the PHRC, filing
with the EEOC did not eliminate the requirement to initiate PHRC
proceedings as required by the PHRA, further noting that the issue of

CIVIL LITIGATION

determining whether or not a claimant has initiated PHRC proceedings
under the PHRA is a matter of state law. Under the PHRA, an employee
claimant must initiate a proceeding by first filing an administrative
complaint with the PHRC within 180 days of the alleged act of
discrimination. There are no such prohibitive administrative requirements
under the NJLAD. While it is possible to file with the New Jersey Division
of Civil Rights within 180 days of the adverse action, and/or with the
EEOC, for example, it is not necessary to do either. In addition, filing with
the New Jersey Division of Civil Rights does not toll a claimant’s time to
file in state court, as a filing under the PHRA does in Pennsylvania. The
NJLAD also permits punitive damages, places no caps on damage awards
and provides for attorney’s fees including the use of a contingency fee
multiplier.

255

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RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Adopt rules and jury instructions to eliminate the use of gender-based
and race-based life expectancy or work-life tables in determining future
earning capacity.

256

2. Direct judges to instruct jurors, at the beginning of each case, to refrain
from allowing personal racial, ethnic or gender bias to influence their
deliberations.
3. Establish a policy that prohibits judges or counsel from using potential
racial, ethnic, or gender bias of jurors as a means of influencing
settlement negotiations.
4. Direct that a standard jury instruction be drafted and implemented in
all types of cases, which prohibits jurors from considering race, gender
or ethnic identity when evaluating the credibility of witnesses, experts
or litigation parties.
5. Increase diversity on juries throughout the Commonwealth.72
6. Direct that model jury instructions be drafted to address specifically the
undervaluation of homemaker services.
7. Commission an empirical study of decided cases in Pennsylvania to
determine whether a racial, ethnic or gender disparity in damage awards
exists, and to determine the specific factors (e.g., future earnings,
evaluation of pain and suffering) that likely account for the disparity,
if any.
8. Include programs on the need for fair and equal treatment of litigants in
employment discrimination cases at training sessions for judges and court
personnel.

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Amend the Pennsylvania Human Relations Act to include a right to a
jury trial for all discrimination plaintiffs, as is provided to virtually all
other plaintiffs in the civil litigation system.
2. Amend the Pennsylvania Human Relations Act to include a right to
reasonable attorney’s fees to plaintiffs who are prevailing parties.
3. Appropriate funding for the Pennsylvania Human Relations
Commission at a level to permit substantive investigation of all claims.

CIVIL LITIGATION

ENDNOTES
············································
1

The Effects of Gender in the Federal Courts, The Final Report of the Ninth Circuit Gender Bias Task
Force, Southern CA. L. Rev., Vol. 67, No. 4, p. 884 (May 1994) [hereinafter Ninth Circuit Study].

2

Judith Resnik, Gender in the Court: The Task Force Reports, The Woman Advocate, (1996); Judith
Resnik, Naturally Without Gender: Woman, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. Rev.
1682 (1991); Kathryn Skoug, The Intersection of Gender and Race in the Federal Courts: Doubly
Disadvantaged; unpublished on file at Georgetown Law Journal (January 26, 1994).

3

Ninth Circuit Study, supra at 885.

4

Sources consulted for this included: Final Report of the Colorado Supreme Court Task Force on
Gender Bias in the Courts (1990) [hereinafter Colorado Report]; Illinois Task Force on Gender Bias
in the Courts, the 1990 Report [hereinafter Illinois Report]; Iowa Equality in the Courts Task
Force, Final Report (1993) [hereinafter Iowa Report]; Kentucky Task Force on Gender Fairness in
the Courts, Equal Justice for Women and Men (1992); Report of the Gender Bias Study of the
Supreme Judicial Court, Commonwealth of Massachusetts (1989) [hereinafter Massachusetts
Report]; Minnesota Supreme Court Task Force for Gender Fairness in the Courts, Final Report
(1989) [hereinafter Minnesota Report]; New Jersey Supreme Court Task Force on Women in the
Courts, First Year Report (1984) [hereinafter New Jersey Report]; New York Task Force on
Women in the Courts, Report (1986); Rhode Island Committee on Women in the Courts, The Final
Report (1987); Washington State Task Force on Gender and Justice in the Courts, Report (1989);
Wisconsin Equal Justice Task Force Final Report (1991).

5

Colorado Report, supra at 104.

6

Id. at 105.

7

Id.

8

The Gender Bias Task Force of Texas, Final Report, p. 41 (1994).

9

Id.

10

Achieving Equal Justice for Men and Women in the California Courts, Final Report of the Judicial
Council of California Advisory Committee on Gender Bias in the Courts, p. 88 (1996).

11

Id.

12

Report of the Oregon Supreme Court/Oregon State Bar Task Force on Gender Fairness, p. 87 (1998).

13

Goodman, Loftus, Miller & Greene, Money, Sex and Death: Gender Bias in Wrongful Death
Damage Awards, 25 L. & Soc’y Rev. 270, 282–82 (1991); Iowa Report, supra at 115.

14

Massachusetts Report, supra, at 211–212.

15

Final Report, Nebraska Supreme Court Task Force on Gender Fairness in the Courts, p. 23 (1994)
[hereinafter Nebraska Report].

16

Iowa Report, supra at 119.

17

Minnesota Report, supra at 78–79; Illinois Report, supra at 186.

18

Colorado Report, supra at 104.

19

Iowa Report, supra at 119.

20

Nebraska Report, supra at 24.

21

Id. at 23.

22

Iowa Report, supra at 199, citing Illinois Report, supra at 186.

23

Washington State Minority and Justice Task Force, Final Report, p. 131 (1990).

24

Report of the New York State Judicial Commission on Minorities, Vol. 2—The Public and the
Courts, p. 184 (1991).

25

Frank M. McClellan, The Dark Side of Tort Reform, Searching for Racial Justice, 48 Rutgers L.
Rev. 774 (1996) [hereinafter McClellan].

26

Id. at 776.

27

Iowa Report, supra at 118.

28

Martha Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463,
465 (1998).

29

Martha Chamallas, A Woman’s Worth: Gender Bias in Damage Awards, Trial Magazine, August
1995 pp. 38–43 [hereinafter Chamallas, A Woman’s Worth].

257

CIVIL LITIGATION

30

Testimony of Dr. James Kenkel, Pittsburgh Public Hearing Transcript, pp.157–158.

31

Gender and Justice: Report of the Vermont Task Force on Gender Bias in the Legal System (1991),
p. 151 [hereinafter Vermont Report].

32

Id. at 152.

33

Id.

34

James Ciecka, Thomas Donley and Jerry Goldman, A Markov Process Model of Work-Life
Expectancies Based on Labor Market Activity in 1997–1998, Journal of Legal Economics,
Winter 1999–2000.

35

Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in
Tort Litigation: A Constitutional Argument, 63 Fordham L. Rev. 74, 115 (1994) [hereainafter
Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort
Litigation: A Constitutional Argument].

36

Id. at 95–96.

37

Id. at 97.

38

Id at 117.

39

Id. at 115.

40

Chamallas, A Woman’s Worth, supra at 40.

41

City of Los Angeles v. Manhart, 435 U.S. 702, 709 (1978).

42

Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic Data in Tort
Litigation: A Constitutional Argument, supra at 105.

43

Id.

44

Id. at 105–107.

45

Id. at 99.

46

New Jersey Report, supra.

47

Minnesota Report, supra at 76.

48

Id. at 77.

49

Colorado Report, supra at 105.

50

Vermont Report, supra at 148.

51

Id. at 150.

52

Id. at 149, 150.

53

Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 Northwestern
University L. Rev. 1 (1996).

54

Id. at 10.

55

Id. at 9–10.

56

Id. at 10.

57

Sources of racial underrepresentation in the jury pool include judicial district boundaries,
qualifications to serve, source lists, questionnaire and summons, random selection, excuses and
exemptions. See Kurt M. Saunders, Race and Representation in Jury Service Selection, 36 Duq. L.
Rev. 49 (1997). For a more extensive discussion of racial underrepresentation in the jury selection
process, see Chapter 2 of this report on Racial and Ethnic Bias in Jury Selection.

58

Testimony of Timothy O’Brien, Pittsburgh Public Hearing Transcript, pp. 162–163.

59

Honorable Frederica A. Massiah-Jackson, Justice and Fairness: A Judge’s Perspective, Race
& Gender in the Courtroom, Pennsylvania Bar Institute, p. 109 (2000).

60

Id.

61

Id at 110.

62

Stanton v. Astra Pharm. Prods. Inc., 718 F. 2d 553, 578–579 (3d Cir. 1983).

63

Id. at 579.

64

Hill v. Maryland, 339 Md. 275, 661 A.2d 1164 (1995).

65

Illinois v. Diggs, 612 N.E. 2d 83, 85 (Ill. App. Ct. 1993); Commonwealth v. Gray, 608 A.2d 534,
540–41 (Pa. Super. Ct. 1992).

66

McClellan, supra at 768.

258

CIVIL LITIGATION

67

Id. at 766.

68

Lynn Hecht Schafran, Overwhelming Evidence: Reports on Gender Bias in the Courts, Trial
Magazine, February 1990, p. 30–32.

69

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 964 (1968).

70

For example, in Haynes v. Rhone-Poulenc, Inc., 206 W.Va. 18, 521 S.E. 2d 33 (1999), the Supreme
Court of Appeals of West Virginia interpreted identical language in that state’s statutory counterpart to
the PHRA, the West Virginia Human Rights Act, W.Va. Code, 5-11-13(c), as permitting an award of
punitive damages to a successful plaintiff under that Act. Similarly, in Perilli v. The Board of Education
Monongalia County, 182 W. Va. 261, 387 S.E. 2d 315 (1989), the Supreme Court of Appeals of West
Virginia construed the same act, the West Virginia Human Rights Act, W. Va. Code, 5-11-13 as
providing a right to a jury trial, reasoning that the language of the statute did not prohibit a jury trial
and that the plaintiff’s sexual discrimination claim was “a species of personal injury akin to tort.”

71

See Chapter 2 of this report on Racial and Ethnic Bias in Jury Selection for a more extensive
discussion of jury diversity.

72

Id.

259

8

EMPLOYMENT AND
APPOINTMENT
PRACTICES OF THE
COURTS

262

INTRODUCTION

264

THE COURT AS EMPLOYER

285

THE COURT AS APPOINTER

297

CONCLUSIONS

299

RECOMMENDATIONS

300

ENDNOTES

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

INTRODUCTION
By virtue of its mission to dispense justice, the entire
court system must reflect fairness and sensitivity in all
respects, including the complexion, demeanor, and
diversity of its work force.

262

Courts differ from other governmental institutions in that their goal is to
uncover truth and dispense justice and, in that process, to apply the law
equally to all people. Their strength rests on the public’s perception that
they are fair, impartial, and independent. When citizens believe that the
courts are unfair or biased, confidence in the judicial system erodes.
By virtue of its mission to dispense justice, the entire court system must
reflect fairness and sensitivity in all respects, including the complexion,
demeanor, and diversity of its work force. Similarly, the process by which
courts hire employees and make appointments must be open and inclusive.
An employment and appointment process that considers a broad spectrum
of qualified candidates will not only appear to be fair, but will serve to
generate a diverse pool of applicants from whom the best candidates may
be selected.
Appellate and trial courts in Pennsylvania have the authority to hire and
appoint individuals to a variety of positions within the legal system. As
employers, the courts hire clerical, technical, legal, and support staff. In
addition, judges appoint attorneys to serve the court as counsel to indigent
criminal defendants and as masters, arbitrators, guardians, and other
positions. Appellate courts can also appoint attorneys, as well as trial
judges, to advisory committees and disciplinary boards. Court staff
positions and judicial appointments confer a certain level of prestige and
can enhance the recipient’s exposure and career.
In an effort to determine whether racial, ethnic, or gender bias plays a role
in the Pennsylvania legal system, two separate Work Groups, the Court as
Employer and the Court as Appointer, were formed to review the court
system’s employment and appointment practices.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Focus of Inquiry
The objective of the Committee’s examination of employment practices in
the Pennsylvania court system was to develop a personnel profile, by race,
ethnicity, and gender of the employees in the system. The Committee
initially planned to conduct an analysis of the courts’ hiring, promotional,
and training practices, but that project was tabled because of difficulties in
obtaining data to produce the profile.
The focus of the Committee’s study of the court appointment system was to
determine whether there is actual or perceived discrimination based on
race, ethnicity, or gender in the process by which courts make their
appointments. The Committee sought to determine whether the process
was sufficiently inclusive to provide all interested and competent candidates
with the opportunity to serve the courts. The inquiry began with an effort
to identify the circumstances in which the court functioned as appointer.
The Committee then gathered data about the process by which
appointments are made, and finally examined the data in order to
determine if any patterns of bias emerged.

263

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

THE COURT AS EMPLOYER
THE PENNSYLVANIA COURT SYSTEM

264

The current Pennsylvania judiciary is composed of the Supreme Court of
Pennsylvania, the Superior Court, the Commonwealth Court, the Courts of
Common Pleas in each county, and the various specialty and minor courts.
Most Pennsylvania justices and judges are elected to 10-year terms; the
policy has been in place since a 1968 referendum amended the 1853 state
constitution. The only exceptions to the 10-year term are district justices,
and judges in Philadelphia Municipal Court and Philadelphia Traffic Court,
all of whom are elected to six-year terms; and judges in Pittsburgh’s
Magistrates Court, who are appointed by the mayor to four-year terms.
Pennsylvania’s court personnel are employed by either the county or by the
Commonwealth. All judges are employed by the Commonwealth, including
justices of the Supreme Court of Pennsylvania; judges on the Superior
Court and Commonwealth Court; trial judges in the Courts of Common
Pleas; and district justices. Appellate court personnel and chief court
administrators are also Commonwealth employees. Employment records
for Commonwealth employees are retained by the Administrative Office of
the Pennsylvania Courts (AOPC). Local county governments employ all
other court employees at the Common Pleas Court and district justice level,
including judicial staff, assistant court administrators, and managers. Their
employment records are maintained by the individual county governments.

SUMMARY OF METHODOLOGY
To gather information about the court as an employer, the Committee
contacted each of the three appellate courts, each county court
administrator, and the AOPC to request data on the race, ethnicity, and
gender of court personnel. Statisticians working for the Committee
provided census data to the Committee for use in comparing the race,
ethnicity, and gender profiles of court personnel with each county’s general
population statistics. A discussion of the specific methodology used in
obtaining that data and the findings is set forth below.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

The Committee also contracted with The Melior Group and V. Kramer
& Associates, Philadelphia-based research and consulting firms, to organize
and conduct focus groups and interviews with court employees, attorneys,
judges, and litigants in several locations around the Commonwealth.
In addition, the Committee reviewed testimony from the six public hearings
held throughout the Commonwealth. Witnesses included experts on topics
being studied by the Committee; advocates for litigants seeking assistance
from the courts; and citizens willing to relate their experiences within the
justice system. Racial, ethnic, and gender bias reports prepared by other
state task forces were also consulted by the Committee.

PROFILES
PENNSYLVANIA JUDICIARY

As of June 2002, there were 431 justices and judges in
the Commonwealth, of whom 73 (17 percent) were
white women, 19 (4 percent) were non-white women
and 16 (4 percent) were non-white men.
—Administrative Office of Pennsylvania Courts and Pennsylvania Bar
Association Commission on Women in the Profession

As of June 2002, there were 431 justices and judges in the Commonwealth,
of whom 73 (17 percent) were white women, 19 (4 percent) were nonwhite women and 16 (4 percent) were non-white men. These figures, and
the additional ones below, were obtained from the AOPC and the
Pennsylvania Bar Association, Commission on Women in the Profession,
2002 Report Card.

265

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

TABLE 1
Race, Ethnic and Gender Profile of Pennsylvania Judiciary
Court or County

Judges
Total

266

12

District Justices
Male

Female

Total

W

NW

W

NW

Male

Female

W

NW

W

NW

Supreme Court

7

6

0

1

0

Superior Court

15

9

1

5

0

Commonwealth Ct

9

4

0

4

1

Adams

3

3

0

0

0

4

4

0

0

0

Allegheny

40

31

1

5

3

55

38

3

13

1

Armstrong

2

2

0

0

0

4

4

0

0

0

Beaver

6

5

1

0

0

9

8

0

1

0

Bedford

2

2

0

0

0

4

2

0

2

0

Berks

12

9

0

3

0

17

13

1

3

0

Blair

4

3

0

1

0

7

6

0

1

0

Bradford

2

2

0

0

0

3

3

0

0

0

Bucks

10

8

0

2

0

18

12

0

6

0

Butler

5

4

0

1

0

4

2

0

2

0

Cambria

5

5

0

0

0

10

9

0

1

0

Carbon

2

2

0

0

0

4

4

0

0

0

Centre

3

3

0

0

0

5

5

0

0

0

Chester

11

6

1

4

0

18

16

1

1

0

Clarion

1

1

0

0

0

4

4

0

0

0

Clearfield

2

2

0

0

0

4

4

0

0

0

Clinton

2

2

0

0

0

3

3

0

0

0

Columbia-Montour

2

2

0

0

0

5

3

0

2

0

Crawford

2

2

0

0

0

6

5

0

1

0

Cumberland

5

5

0

0

0

8

4

0

4

0

Dauphin

8

7

0

1

0

14

12

0

1

1

Delaware

18

13

1

4

0

32

23

3

6

0

Elk-Cameron

0

0

0

0

0

3

3

0

0

0

Erie

9

7

0

2

0

14

10

0

4

0

Fayette

6

6

0

0

0

13

10

0

3

0

Franklin-Fulton

4

3

0

1

0

9

6

0

3

0

Greene

2

2

0

0

0

3

3

0

0

0

Huntingdon

1

1

0

0

0

4

3

0

1

0

Indiana

2

2

0

0

0

4

3

0

1

0

Jefferson

1

1

0

0

0

3

3

0

0

0

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Court or County

Judges
Total

District Justices
Male

Female

Total

W

NW

W

NW

Male

Female

W

NW

W

NW

Lancaster

12

11

0

1

0

20

15

0

5

0

Lawrence

4

4

0

0

0

5

4

0

1

0

Lebanon

4

4

0

0

0

7

5

0

2

0

Lehigh

9

8

0

1

0

14

10

0

4

0

Luzerne

9

8

0

1

0

17

16

0

1

0

Lycoming

5

4

0

1

0

6

6

0

0

0

McKean

1

1

0

0

0

4

3

0

1

0

Mercer

3

3

0

0

0

5

4

0

1

0

Mifflin

1

1

0

0

0

2

1

0

1

0

Monroe

5

3

0

2

0

10

8

0

2

0

Montgomery

20

18

0

2

0

30

21

0

9

0

Northampton

6

5

0

1

0

15

7

0

8

0

Northumberland

3

3

0

0

0

5

5

0

0

0

Perry-Juniata

2

2

0

0

0

5

2

0

3

0

Philadelphia

90

43

11

21

15
25

13

2

6

4

6

4

0

0

2

Philadelphia
Municipal Ct
Philadelphia Traffic Ct
Pike

1

1

0

0

0

4

4

0

0

0

Potter

1

1

0

0

0

4

0

0

4

0

Schuylkill

6

5

0

1

0

8

6

0

2

0

Snyder-Union

2

1

0

1

0

4

4

0

0

0

Somerset

3

3

0

0

0

5

4

0

1

0

Susquehanna

1

1

0

0

0

3

3

0

0

0

Tioga

1

1

0

0

0

3

3

0

0

0

Venango

2

2

0

0

0

4

4

0

0

0

Warren-Forest

2

2

0

0

0

6

4

0

2

0

Washington

5

3

0

2

0

12

10

0

2

0

Wayne

1

1

0

0

0

4

1

0

3

0

10

8

0

2

0

19

14

0

5

0

1

1

0

0

0

4

2

0

2

0

11

9

0

2

0

18

14

0

4

0

431

323

16

73

19

576

432

10

126

8

Westmoreland
Wyoming-Sullivan
York
Totals

267

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

APPELLATE COURT PERSONNEL

268

Data were also obtained from two of the three Pennsylvania appellate courts
on the racial, ethnic, and gender composition of their work forces. The
findings showed that in the Pennsylvania Superior Court, 29 percent of the
personnel were male; 71 percent were female; 91 percent were white;
and 9 percent were non-white. Similarly, in the Pennsylvania Commonwealth
Court, 30 percent of the personnel were male; 70 percent were female;
92 percent were white and 8 percent were non-white. The data are presented
in the following tables:
TABLE 2
Race, Ethnic, and Gender Profile of Pennsylvania
Superior Court Personnel
October 2001
Office

Total

 

Male

Female

 

W

NW

W

NW

137

33

3

97

4

25

8

0

15

2

Legal Systems

5

3

0

2

0

Executive Administrator

5

3

0

2

0

Fiscal Department

5

0

4

1

Judges Chambers
Central Legal

Prothonotary Philadelphia

21

5

3

8

5

Prothonotary Harrisburg

10

2

0

7

1

Prothonotary Pittsburgh

11

4

0

6

1

4

0

0

4

0

223

58

6

145

14

Reporting Office
Totals

TABLE 3
Race, Ethnic, and Gender Profile of Pennsylvania
Commonwealth Court Personnel
March 2002
Employees

Total: 136

Male

Female

W

NW

W

NW

38

3

87

8

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

The Committee also requested that each of the three Pennsylvania appellate
courts provide data on the race, ethnicity, and gender of law clerks
employed by those courts. None of the three appellate courts routinely
gathers that data, but the Superior Court made a special effort to do so
for the Committee. The data from Superior Court is presented in the
following table:
TABLE 4
Race, Ethnic, and Gender Profile of Pennsylvania
Superior Court Law Clerks

269

September 2002
Law Clerks
 
Total: 101

Male

Female

W

NW

W

NW

35

4

61

1

COUNTY COURT PERSONNEL
Determining the racial, ethnic, and gender composition of county court
personnel was considerably more difficult than determining the racial,
ethnic, and gender composition of the three appellate courts. The appellate
courts are staffed by AOPC employees with common job classifications.
The 67 county courts3 throughout the Commonwealth, however, maintain
separate personnel systems, and each county has both county and
Commonwealth employees. Further, each of the court systems has its own
unique job classification system in place. Some counties’ classification
systems are identical; others are not, making comparisons between counties
virtually impossible.
Although the lack of uniformity of the job classification systems in
the counties was a challenge, the Committee nevertheless felt that it was
desirable to obtain some baseline data. Consequently, county court
administrators were surveyed in an attempt to determine if racial, ethnic,
and gender data are collected and to discover the nature of job
classifications in county courts.
Survey

The survey of court administrators was designed by consultant Alan Rosin,
of AR Associates, who designed a similar study for the state of California.
The Committee made some minor modifications to Rosin’s survey design.
A copy of the survey instrument is found at Appendix Vol. II. Each of the

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

61 county court administrators4 received the survey and 54 (86 percent)
returned it. The findings indicated a wide disparity in the nature of job
classifications and in the ways that racial, ethnic, and gender information is
collected and maintained.
Findings

Number of personnel in county justice system

270

Court administrators were asked to indicate the number of personnel in their
justice system. Not surprisingly, the number of personnel varied widely, given
the range of county populations in Pennsylvania. The average number of
personnel was 214 persons per county, ranging from a low of five persons in
the joint system in Perry and Juniata counties to a high of 2,609 persons
in Philadelphia County. Only two counties, Philadelphia and Allegheny, had
more than 550 persons working in the court system.

Availability and type of racial, ethnic, and gender data maintained
Court administrators were asked about the availability of racial, ethnic,
and gender information for all county justice system employees. The
definition of “county court employee” was left to each court system.
Overall, slightly more counties had collected gender information than had
collected racial/ethnic information. In only 31 percent of the counties,
however, was the gender information in a format that could be linked to
racial/ethnic information. Four court administrators who said they did not
collect racial, ethnic, or gender information also indicated that they knew
this information through their own observations. Counties with more than
50 employees were more likely than the smaller counties to have racial,
ethnic, and gender data available.

Job classifications for which racial, ethnic, and gender data
is available
Court administrators were also asked to identify each job classification for
which racial, ethnic, or gender information was available. The court
personnel were divided into two categories: judicial officers (judges, hearing
officers, masters) and non-judicial employees (all other court personnel). In
general, racial, ethnic, and gender information was more readily available
for non-judicial employees than for judicial officers. The responses also
showed that only half of the responding counties with non-judicial
employees maintained any such information.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Other job classifications
Counties were asked to list any job classifications that they use but that
were not listed on the survey. One-third reported that they did have other
job classifications including: probation officers (13 counties) and tipstaves
(six counties), and court reporters, law clerks, law librarians, and lawyers
(five counties each). There were also many other jobs mentioned by a
single county, including first-level supervisors, caseworkers, enforcement
officers, jury attendants, district justice clerks, district justice secretaries,
court administrative-clerical, and domestic relations director. Philadelphia
County attached a list of 170 additional job titles.
It was not possible within the Committee’s pressing time constraints,
however, to determine how the counties retrieved and recorded racial,
ethnic, and gender data: by self-reporting, by observation, or by some other
method. Therefore, there is no guarantee of consistent or complete data
even in the counties that do keep such data.

Contract personnel
In addition, 80 percent of the reporting counties contracted for personnel
who were not justice system employees. These personnel included
interpreters, court reporters, arbitrators, masters, conflict counsel, and
mediators. One county also contracted for clerical staff, a mental health
review officer, secretaries, tipstaves, and hearing officers. Only two of the
42 counties with contract personnel kept information on race, ethnicity,
or gender.

Racial/ethnic classifications
In compliance with federal Equal Employment Opportunity Act guidelines,
96 percent of the responding counties that collected racial/ethnic data
did so in broad classifications, such as “white, not of Hispanic origin,”
“African American,” “Hispanic,” “Asian or Pacific Islander,” and
“American Indian.”

Format for retained data
There is no consistency in the manner or method of data compiled by those
counties that keep racial, ethnic, and gender data. Sixteen of the 31
responding counties maintained computerized records and the remaining
15 counties used hard copies. Some counties used more than one data

271

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

format, and three counties used both computerized records and hard
copies.
There was likewise no consistency in the storage software used to maintain
the data. Some counties reported using AS400, while others used Microsoft
Visual FoxPro and two counties used the ADP system. The rest of the 16
counties used other systems and software, including SQL, Access, Excel,
MUNIS, ADMINS system, and Pentamation. Administrators in two
counties said they did not know how their records were kept.

272
The data are acquired in a myriad of ways. Eleven counties used the federal
EEO-4 form, while 18 others used miscellaneous forms that included
employment applications or files (nine counties), information sheets or data
sheets (two counties), EEO Internal-report (one county), and STD-21-B
(one county). One court administrator also reported using first-hand
knowledge.

SNAPSHOT OF COUNTY COURT WORKFORCES
A direct comparison of county court employment by job categories is
virtually impossible because even when counties have set up and
maintained employee databases, they are unique to the particular county.
Nevertheless, the Committee compiled the basic racial, ethnic, and gender
data provided by the county courts that kept the data. As was earlier noted,
while differences in compiling and reporting data make precise figures
impossible, it is still evident that Pennsylvania’s county courts employ few
non-whites in any capacity. In an effort to place these numbers in context,
the Committee compared survey data with census figures of the non-white
and female populations in each county.5 The data are depicted in Table 5.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

TABLE 5
Race, Ethnic, and Gender Profile of Selected County Court Personnel
County

Adams
Allegheny

Total
Male
employees
W

Female

6

2000 Census

NW

W

NW

47

17

0

30

0

1099

305

89

544

161

Population

91,292
1,281,666

Percent
nonwhite

Percent
female

4.6

50.9

15.7

52.6

Armstrong

72,392

1.7

51.4

Beaver

181,412

7.5

52.1

49,984

1.5

50.7

Berks

373,638

11.8

51.

Blair

129,144

2.4

52.1

Bradford

62,761

2.1

51.3

Bucks

597,635

7.5

50.9

174,083

2.2

51.2

Cambria

152,598

4.2

51.5

Carbon

58,802

2.2

51.3

Bedford

Butler

28

116

39

0

77

1

Centre

84

24

0

60

0

135,758

8.6

48.9

Chester

493

110

8

319

56

433,501

10.8

50.9

Clarion

41,765

1.8

51.7

Clearfield

83,382

2.6

50.1

Clinton

37,914

1.7

51.5

Columbia-

64,152/

2.4

52.4/

Montour

18,236

3.3

52.5

Crawford

90,366

3.0

51.3

213,674

5.6

51.2

Dauphin

251,798

22.9

52.

Delaware

550,864

19.7

52.3

Cumberland

58

23

1

34

0

Elk-

35,112/

1.0/

50.5/

Cameron

5,974

1.2

50.9

Erie

280,843

9.1

51.2

Fayette

148,644

4.7

52.1

Franklin-

129,313/

4.7/

51.3/

Fulton

14,261

1.7

50.0

Greene

40,672

4.9

48.5

Huntingdon

45,586

6.6

47.7

89,605

3.1

51.5

Jefferson

45,712

1.0

51.1

Lackawanna

213,295

3.3

52.8

Indiana

65

16

0

49

0

273

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

County

Lancaster

274

Total
Male
employees
W

NW

W

NW

8

283

49

Population

Percent
nonwhite

Percent
female

8.5

52.8

Lawrence

94,143

5.0

52.5

Lebanon

120,327

5.5

51.3

Lehigh

312,090

13.0

51.8

Luzerne

319,250

3.4

51.8

Lycoming

120,044

6.1

51.1

McKean

45,936

3.5

49.9

Mercer

120,293

6.9

51.3

46,486

1.5

51.8

138,687

11.8

50.6

27

118

2000 Census

474,658

Mifflin

458

Female

12

0

15

0

Monroe
Montgomery

234

79

3

133

18

750,097

13.5

51.7

Northampton

326

103

13

197

13

267,066

8.8

51.3

Northumberland

94,556

2.9

51.0

Perry-

43,602/

1.5/

50.4/

Juniata

22,821

1.9

50.3

55.0

53.5

Philadelphia

2460

789

270

794

606

1,517,550

Pike

46,302

6.9

50.2

Potter

18,080

1.9

50.7

150,336

3.4

50.2

Snyder-

37,546/

2.1/

51.1/

Union

41,624

9.9

44.7

2.6

50.1

Schuylkill

134

43

0

91

0

Somerset

80.023

Susquehanna

42,238

1.5

50.3

Tioga

41,373

1.9

51.0

Venango

57,565

2.4

51.2

Warren-

43,863/

1.3/

51.0/

Forest

4,946

4.1

47.4

202,897

4.7

52.0

Wayne

47,722

3.3

49.8

Westmoreland

369,993

3.4

51.8

Wyoming-

28,080/

1.7/

50.4

Sullivan

6,556

4.4

49.5

York

381,751

7.2

50.8

Totals

12,281,054

14.6

51.7

Washington

199

61

6

124

8

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

DETAILED INFORMATION ON SEVEN COUNTIES
Seven counties provided detailed data on the racial, ethnic, and gender
composition of their county court personnel. Unfortunately, as described
above, the employment categories are markedly different. The following
tables are presented to illustrate the type of information collected in
the survey.
TABLE 6
7
Allegheny County Personnel Profile

275

August 29, 2000
Job Category

Total Within
Job Category

Male

Female

W
28%

NW
8%

W
49%

NW
15%

19

8

0

7

4

Management

124

52

9

47

16

Professional

291

132

41

88

30

Confidential

210

50

2

139

19

Clerical

446

61

34

260

91

9

2

3

3

1

305

89

544

161

Judicial-related

Part-time temporary
Grand Total

1099

TABLE 7
Chester County Personnel Profile
June/2002
Job Category

Total Within
Job Category

Male

Female

W
22%

NW
2%

W
65%

NW
11%

19

9

1

7

2

194

73

5

104

12

1

0

0

0

1

246

10

1

193

37

32

15

1

12

4

Service/Maintenance

1

1

0

0

0

Technicians

3

2

0

1

0

Elected Officials

2

0

0

2

0

493

110

8

319

56

Officials and Administration
Professional
Paraprofessionals
Clerical
Protective Service

Grand Total

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

TABLE 8
Cumberland County Personnel Profile
June/2002
Job Category

276

Total Within
Job Category

Male

Female

W
39%

NW
2%

W
59%

NW
0%

Casa Program Coordinator

2

0

0

2

0

Clerk, JR Law-Part Time

5

2

0

3

0

Clerk, SR Law-Part Time

4

3

1

0

0

Court Reporter

9

0

0

9

0

Jury Commissioner

2

1

0

1

0

Secretary to Judge

5

0

0

5

0

Staff Assistant

4

0

0

4

0

18

11

0

7

0

Chief Tipstaff

1

1

0

0

0

Juvenile Master

1

1

0

0

0

Law Library Clerk

1

1

0

0

0

Law Clerk

1

1

0

0

0

Court Administrator

1

1

0

0

0

Asst. to Court Administrator

2

0

0

2

0

Special Court Administrator

1

1

0

0

0

Divorce Master

1

1

0

0

0

58

23

1

34

0

Tipstaff

Grand Total

TABLE 9
Indiana County Personnel Profile
June/2002
Job Category

Total Within
Job Category

Male
W
25%

Female
NW
0%

W
75%

NW
0%

Probation

21

10

0

11

0

Domestic Relations

17

4

0

13

0

Court Staff

27

2

0

25

0

Grand Total

65

16

0

49

0

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

TABLE 10
Lehigh County Personnel Profile
June/2002
Job Category

Total Within
Job Category

Male
W
25%

Female
NW
1%

W
67%

NW
7%

Court Administration

94

25

0

63

6

Adult Probation

55

21

0

29

5

Juvenile Probation

72

31

4

34

3

9

0

0

7

2

63

10

0

48

5

2

1

0

1

0

District Justices

65

0

0

59

6

Law Library

13

3

0

10

0

373

91

4

251

27

Orphans Court
Domestic Relations
Master in Divorce

Grand Total

TABLE 11
Philadelphia County Personnel Profile
April/2002
Job Category

Total Within
Job Category

Male
W
32%

Female
NW
11%

W
32%

NW
25%

Officials and Administration

128

78

16

19

15

Professional

873

302

137

224

210

Paraprofessionals

184

44

1

89

49

Clerical

699

78

30

352

239

Protective Service

378

208

74

48

48

14

8

1

4

1

132

27

5

56

44

Skilled Crafts

50

44

6

2

0

Grand Total

2459

789

270

794

606

Service/Maintenance
Technicians

277

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

TABLE 12
Schuylkill County Personnel Profile
June/2002
Job Category

278

Total Within
Job Category

Male

Female

W
32%

NW
0%

W
68%

NW
0%

Officials and Administration

10

5

0

5

0

Professional

48

33

0

15

0

0

0

0

0

0

71

3

0

68

0

Protective Service

0

0

0

0

0

Service/Maintenance

0

0

0

0

0

Technicians

5

2

0

3

0

Skilled Crafts

0

0

0

0

0

134

43

0

91

0

Paraprofessionals
Administrative support

Grand Total

ANALYSIS OF COURT PERSONNEL PROFILES
The data tables presented in the previous sections indicate the following:
1. Minorities are represented on the bench or in the court personnel
system only in those counties in which there is a significant minority
population—primarily Pittsburgh and Philadelphia, and Philadelphia’s
surrounding suburban counties. With the exception of court personnel
in Chester County, however, in no counties are minorities represented
on the bench or among court personnel in numbers proportionate to
their population.
2. There are few or no minority employees in six of the 14 counties that
acknowledged collecting racial and ethnic data on court employees.
3. The tables from the counties with more detailed data illustrate the
disparities in current job classification categories, as well as the
difficulties in compiling data. The definition of “professional” in one
county, for example, may be different from that used in another county.
Absent that type of information, it is impossible to evaluate the data
submitted. It is also not feasible, given the state of the present database,
to accurately assess whether the hiring and promotional practices in
some counties are fair or if there are equal opportunities for promotion
in each system. Further research will be required by expert consultants
to answer these questions.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

4. The data do show, however, that women, both white and non-white,
are generally clustered in the clerical and secretarial jobs, while men
tend to hold the managerial and professional positions. The notable
exception is Chester County.
5. There are far more men than women in protective services positions.
6. There is a need for a centralized system to compile detailed data in a
format mandated by the Supreme Court. There is also a need for more
extensive study of the hiring, training, and promotion practices at all
levels of the Pennsylvania court system.

THE MELIOR GROUP/V. KRAMER & ASSOCIATES FOCUS
GROUP FINDINGS
As stated previously, the Committee contracted with The Melior Group
and V. Kramer & Associates to conduct a series of focus group sessions and
interviews with attorneys, judges, court personnel, and litigants to discuss
whether the Pennsylvania justice system operates fairly. Copies of the
consultants’ final reports are found in Appendix Vol. II.
Relevant key observations in the sessions included the following:
1. There was a perception that female court personnel are clustered in
certain lower-level job categories and are often absent from supervisory
categories that remain mostly male. (This perception is affirmed by the
county data discussed earlier in this chapter.) Moreover, participants
also reported large salary gaps between male and female court
employees.8
2. In some counties, court personnel reported that certain jobs are
considered “men’s jobs.”
a. In Erie County, court personnel said that men alone are interviewed
for certain jobs, which pay more than other comparable jobs that are
“open” to women.9 The Erie group also commented on the almost
total absence of African American court staff.10
b. In Philadelphia, employee participants said that certain jobs, such
as court crier, are patronage jobs and tend to go to men, while other
jobs, such as clerks, are standard county jobs and tend to be filled
by women.11
c. Some judges also noted that certain courtrooms almost seem racially
segregated and that certain job categories seem to break down by
race and gender.12

279

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

3. Generally, female employees did not perceive that there was a viable,
realistic way for them to complain about bias. If they complained to
their supervisors, they worried about being perceived as troublemakers;
this was particularly problematic if the immediate supervisor was
a judge.13

280

4. African American court personnel across the Commonwealth reported
a pervasive condition of disrespect and unequal treatment in the
workplace. They were concerned that if they complained about such
treatment, they could lose their jobs. Consequently, they reported
adopting a “grin and bear it” attitude.14
5. African American litigants also noted the paucity of African American
employees in the courtroom. Some litigants commented that as a result,
the courtroom felt “unfriendly” and “uncomfortable.”15
6. Participants noted that African American personnel principally work
in the courtrooms of minority judges. One effect of the pattern is that
minority employees find advancement unlikely, unless they have a
patron with “clout.”16
7. African American attorneys and court personnel said they were very
concerned about the latitude and tolerance that courts afforded to
people who used race-based negative innuendo to their advantage.17

8. Minority employees felt that employment of more minorities would
help moderate disparate treatment.18 The feeling was that the dynamics
of the courtroom are complex, and a minority presence in the
courtroom would help reduce racially-biased behavior.19

9. The racial and gender composition of court personnel in various
courtrooms was seen by participants in the focus groups as a reflection
of bias in hiring and job assignments.20
10. Almost all participants—judges, employees, and attorneys—agreed that
racial, ethnic, and/or gender bias could be subtle, and was often a
matter of perception and interpretation.21 Participants said instances of
overt bias due to race, ethnicity, or gender were more common in areas
of the Commonwealth where minority and female lawyers and judges
rarely, if ever, have been seen in courtrooms.22

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

11. Judges had different views about the roles they had played—or could
play—in changing the racial, ethnic, and gender profile of court
employees. The degree to which a judge controls hiring and promotion
is a matter of local custom. Different geographical areas have their own
hiring procedures that may or may not leave room for political
appointments.23
12. A number of judges reported hearing court employees use patronizing
language about system participants who are different from them.24
13. Attorneys and court personnel alike felt largely powerless to challenge
biased behavior.25 African American court personnel expressed little
hope for system-wide remedies that would overcome society’s racism.
Participants said they looked toward the judge as the one authoritative
voice that could rectify disparate treatment. Participants believed that
a meaningful response to unequal treatment must start with the
Supreme Court of Pennsylvania setting the tone and descend through
the administrative hierarchy of the justice system.26
14. There was universal agreement that judges set the tone for how things
run in the courtroom and in their chambers, and that they have the
power and responsibility to rectify racial, ethnic, and gender bias in the
courtroom and the courthouse.27
Focus group participants and interviewees had numerous suggestions for
improving the system, including the following:
1. From judges:

a. Prevent bias through training and education of lawyers and judges,
starting in law school.28 A number of judges in Philadelphia were
enthusiastic about relatively new “sensitivity” training for court
personnel.29
b. Create methods to identify and deal with instances of attorney and
judicial bias when they occur.30
c. Urge the Supreme Court to “find the line between common sense
and political correctness”—particularly with regard to training and
the need to get participants to take it seriously.31
2. From employees:
a. Participants were frustrated both by the “blind eye” they said was
often turned towards racial and ethnic problems in the courtroom,
and by perfunctory remedial efforts, including sensitivity training,
which they said were sporadic and ineffective. As an alternative,
participants suggested independent courtroom observers who could
verify complaints while allowing the complainants to remain

281

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

anonymous.32 The consultants noted that this recommendation was
another way of saying that the Supreme Court should set a tone
and dictate compliance.33
b. Participants called for creation of an independent panel34 outside the
employees’ chain of command, to which employees could report
instances of bias.35
c. Participants favored creation of a disciplinary board that would hold
judges accountable, but to which they could report anonymously.36

282

PUBLIC HEARINGS

Beata Peck Little, executive director of the Women’s
Resources of Monroe County, testified that she and her
staff had been unable to identify a person of color in
the judiciary or court administration, despite the
county’s 348 percent increase in Latino population
since 1990 and 383 percent increase in African
American population in the same period.
At the Committee’s public hearings, the most common concerns regarding
the role of the court as employer raised by experts and laypersons included
the following:
•

Minimal minority representation in the judiciary, in court administration,
and among court staff reinforces the perception that the court does not
serve members of the minority communities except as defendants.

Many speakers at public hearings across the Commonwealth touched on
issues related to employment by the court. In Erie County, Gary Horton,
executive director of the Urban Erie Commission, said minorities appeared
to be underrepresented in the court system, compared to the general
population.37 Judge Stephanie Domitrovich of Erie County said that, of
about 500 lawyers in the county, approximately 40 to 50 were women and
five or six were African American.38
Beata Peck Little, executive director of the Women’s Resources of Monroe
County, testified that she and her staff had been unable to identify a person
of color in the judiciary or court administration, despite the county’s 348
percent increase in Latino population since 1990 and 383 percent increase
in African American population in the same period.39

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Little suggested that the court should actively recruit and train people of
color if employment in the system is to reflect local communities. Lawyers
and court administrators should be recruited, she said, and people of color
should be encouraged to run for elected positions such as magistrate,
district justice, and judge.40
The same issues were raised in Philadelphia. Iraida Afanador, associate
executive director of the Lighthouse, posed a question to the legal
community: “Are you hiring from the communities that you serve?”41

283
Jerome Mondesire, president of the Philadelphia branch of the NAACP,
noted that the lack of diversity in the numbers of minority judges,
prosecutors, court administrators, and chosen jurors reinforces the perception
among African Americans that, “If you are black, you are more likely to be
stopped, arrested, prosecuted and imprisoned than if you are white.”42
Mondesire ventured that the electoral process does not adequately provide
for diversity on the bench. Too much emphasis is placed on those who can
afford “to buy their way onto the ballot,” he said, endorsing appointment
of appellate judges.43
Judith Ariola-Rivera, bilingual and bicultural domestic violence counselor
for Women’s Resources of Monroe County, pointed out that many judges
do not understand “the differences in religion and culture and ethnicity”
and why differences in cultures might lead a woman to act or dress in a
certain manner.44
Witnesses at various hearings noted that there is no institutionalized forum
where judges can discuss questions of possible race, gender, and ethnic bias
within the system.45 In addition, Afanador pointed out that there had been
testimony about African Americans, minorities or people of color at the
Philadelphia hearing, but no specific mention of Latinos. She also noted the
absence of Latinos in administrative and judicial positions.46

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

•

284

Suggestions for improvements

Many suggestions were made for improvements in employment within
county courthouses. In Allegheny County, it was suggested that the court
maintain a statistical analysis of people on the court system payroll.47 In
Philadelphia County, a speaker recommended scrutiny of the courts’
employment practices, coupled with hiring from the communities served.
For outreach to job candidates, the courts could advertise in community
newspapers and contact community organizations.48 Another participant
suggested instituting regular education sessions to address problems of
racial, ethnic, and gender bias.
The Honorable John Younge, of the Court of Common Pleas in
Philadelphia, suggested that the court adopt a goal of zero tolerance of
racial discrimination and gender bias in the courthouse, whether in the
courtroom or the workplace. He also suggested community outreach
programs to address the perception that the courthouse is an inhospitable
place. Judge Younge said he meets monthly with a group in the court to
discuss issues relating to gender and racial bias. Recently, the group
participated in a seminar on racial hate crimes.49
One attorney recommended the creation of a permanent mechanism for
addressing bias issues, involving leaders of the bench and bar in the
process.50

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

THE COURT AS APPOINTER
The appointers…may not fully appreciate that the
racial, ethnic, and gender distribution in these
positions conveys a strong message about the
status of men and women and racial and ethnic
minorities in the court system.
In Pennsylvania, the appellate and trial courts draw upon the
extensive talents and knowledge of the private, public, and academic
legal communities. The courts appoint lawyers to a variety of
positions. Individual judges may appoint staff, criminal defense
counsel, experts, guardians, and the like. The president judge of a
county court may appoint administrative staff, permanent masters,
and lawyers to court-related advisory committees.
These appointments are highly valued. They reflect the court’s
recognition of the lawyer’s reputation and standing in the legal
community. In addition, some appointments involve remuneration.
The appointers, on the other hand, may not fully appreciate that the
racial, ethnic, and gender distribution in these positions conveys a
strong message about the status of men and women and racial and
ethnic minorities in the court system. Similarly, the manner by
which appointers select appointees conveys a strong message about
the fairness of the system. The participation of a diverse group
of attorneys in appointed roles also increases the comfort level of
litigants, jurors, and criminal defendants, and goes a long way to
demonstrate that fairness is a reality in the justice system, not just a
lofty ideal.
It is important, therefore, to ensure that all lawyers, to the extent
possible, have the opportunity to receive court appointments
periodically without regard to race, ethnicity, or gender. The courts
should always bear in mind the value and necessity of diversity.

285

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

CIRCUMSTANCES IN WHICH COURTS
MAKE APPOINTMENTS
SUPREME COURT OF PENNSYLVANIA

286

There are seven justices of the Supreme Court. The Court makes
many appointments, ranging from court system administrator to
members of court committees, the Disciplinary Board, and some
members of the Judicial Conduct Board and Court of Judicial
Discipline.

SUPERIOR COURT
The Superior Court currently has 22 judges, 14 of whom are
commissioned and eight of whom are senior judges. Each judge
employs/appoints four judicial law clerks, one summer law student
intern, and, depending on available funding, a support staff of two
secretaries. Superior Court does not make appointments as a court.
The president judge has the power to appoint staff positions, such as
directors of administration and central legal staff.
A report submitted to the Committee by the Superior Court indicated
that, in 2000, each of the 19 judges who made appointments hired six
staff persons; the remaining three judges each hired seven staff
persons, some of whom hold part-time positions. Of the 135 total
appointed positions in the Superior Court, seven, or 5 percent, were
filled by non-white applicants.

COMMONWEALTH COURT
The Commonwealth Court currently has 16 judges, nine of whom are
commissioned, and seven of whom are senior judges. One senior
judge ended service at the end of 2002. Commonwealth Court, as a
court, does not make appointments. The president judge has the
power to appoint all personal and administrative staff. Each judge
appoints his or her staff, including four law clerks and two secretaries
per chambers.

COMMON PLEAS COURTS
As of 2002, there were 399 Common Pleas Court judges in
Pennsylvania. They have appointment authority in a wide range of
circumstances that are staff-related, case-related, or court-related.
Staff-related appointments are those appointments the judge makes to

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

his or her staff, including tipstaves, law clerks, secretaries, and
sometimes court reporters. Case-related appointments pertain to
a particular case before the judge. They include special masters,
arbitrators, mediators (in some cases), guardians, special trustees, and
experts. Individual judges often appoint counsel in criminal cases
and approve class action lead counsel in complex cases. Court-related
appointments are made on behalf of the full court. These appointments
include the court’s administrative staff, permanent hearing officers,
interpreters, stenographers, and small claims arbitrators. The president
judge in each Court of Common Pleas makes many of the court-related
appointments. Permanent hearing officers or interim district attorneys
are appointed by a majority vote of the court’s membership.
Appointment practices vary by county; in some counties, administrative
arms of the court are responsible for appointments.

METHODOLOGY
The Committee’s data gathering efforts were broad-based. Through
a survey of court administrators, the Committee sought information
about the hiring and appointment process for private attorneys and
court personnel in the Common Pleas courts. The Committee also
received valuable information from individual attorneys, judges, and
court personnel who testified at the public hearings throughout the
Commonwealth.51 In addition, site visits were made to Pittsburgh and
Philadelphia where interviews were conducted with judges and
administrators.52 The Committee also reviewed racial and gender
bias reports prepared by task forces in other states.

SURVEY
The Committee developed a survey with the assistance of court
administrators throughout the Commonwealth.53 See, Survey,
attached in Appendix Vol. II. The survey was formulated to establish
the criteria—such as experience, years of practice, and
education—used to fill certain appointed positions. The Committee
was particularly interested in the following positions: arbitrators,
conflict counsel, court-appointed counsel, hearing officers, judicial
law clerks, masters, judicial staff, and appointed committees.54 The
Committee also sought information about advertising vacancies,
assessment of applicants’ qualifications, and efforts to recruit women
and minorities. Another purpose of the survey was to determine
whether there was consistency among the various county
appointment practices.

287

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Responses to the survey were made by 51 of the counties surveyed, or
76 percent. See, the Statistical Report attached in Appendix Vol. II.
While not every survey was completely answered, certain patterns
emerged from the responses to each question.

FINDINGS
Most Common Appointed Positions
The position of arbitrator is the most common appointment made
by county courts. Seventy-five percent of the counties appoint
arbitrators, and the appointments are usually the exclusive province
of president judges. Conflict counsel, appointed to represent indigent
criminal defendants when the local public defender’s office has a
conflict in representing the defendant, are most likely to be
“employed,” or hired as employees, by counties. Judicial clerks are
most likely among the appointees to be hired “under contract.”
The salaries and methods of payment for each position vary
considerably among counties. Payment may be made on an hourly,
daily, monthly, yearly, or case-by-case basis. Individual judges
also retain responsibility for employing their own staff. Some court
administrators appoint conflict attorneys in criminal court.

288

Selection Standards
The survey identified selection standards for each position.
The following table summarizes these findings.
TABLE 13
Selection Standards
Position

Experience

Years of Education
Practice and
Training

Application

Interview Observed
References
Performance

Arbitrators

X

X

X

Conflict Counsel

X

X

X

X

X

Court-Appointed
Counsel

X

X

X

X

X

Hearing Officers

X

X

X

X

X

Judicial Clerks

X

X

X

X

Masters

X

X

X

X

X

Mediators

X

X

X

X

Judicial Staff

X

X

X

X

X

X
X

X
X

X

X

X

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Recruitment
While applicants for law clerk and other judicial staff positions are
generally recruited by courts through a formal application process, an
informal process is used for appointments and for applications to
most other positions, including conflict counsel, court-appointed
counsel, master, and mediator. (“Informal” in this context means
without any standard procedure.) Applications for all positions are
mainly screened by court administrators or president judges.

289

Applicant Lists
Only one-quarter of the responding counties created a list of
applicants and most did not maintain it. Of those counties that
maintained a list, only one-third updated it on an annual or
“as needed” basis.

Selection Procedure
For those counties that do create and maintain a list of applicants,
selections are made either by rotation or at the judge’s discretion.
The following table summarizes the selection procedure by position.
TABLE 14
Selection Procedures
Position

Rotation

Arbitrators

X

Court-Appointed Counsel

X

Hearing Officers

X

Masters

X

Conflict Counsel

X

Discretion of Judge

Judicial Clerks

X

Judicial Staff

X

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Recruitment Efforts
Most counties make no effort to recruit minorities or women for
the positions studied by the Committee. Of the counties responding
to the survey, 70 percent reported filling the positions without
recruiting for minorities and 77 reported not recruiting for females.
The majority of the counties with at least 10 percent minority
employment in those positions did, however, recruit for minorities.
In contrast, the counties with at least 25 percent women employed in
these positions noted that there was no targeted recruitment for
women.

290

TABLE 15
Recruitment Efforts for Minority Employees
All Counties
Effort to recruit?

Valid

Invalid

n

%

Yes

11

22

No

26

Total
No Answer

Total

>= 10% employees

% Valid

n

%

% Valid

% Effort

% of all counties

30

5

50

55

46

10

51

70

4

40

45

15

8

37

73

100

9

90

100

14

27

1

10

2

51

100

10

100

20

18

TABLE 16
Recruitment Efforts for Female Employees
All Counties
Effort to recruit?

Valid

Invalid
Total

n

%

Yes

9

17.6

No

30

58.8

Total

39

76.5

No Answer

12

23.5

51

100

% Valid

>= 25% employees
n

%

23.07692

6

35

40

67

12

76.92308

9

53

60

30

18

15

88

100

2

12

4

17

100

34

100

% Valid

% Effort

% of all counties

30

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

Positions for Which Recruitment Efforts Are Made
by County Courts
Counties that recruit minorities and women make an effort to find
qualified candidates for almost all positions. Appointments of
arbitrators and mediators are a notable exception. See the following
tables.
TABLE 17
Counties That Make An Effort To Recruit Minorities By Position
Yes

No

N/A

Total

10%+

Arbitrators

5 or 50%

3 or 30%

2 or 20%

10 or 100%

4 or 40%

Conflict Counsel

7 or 70%

0 or 0%

3 or 30%

10 or 100%

3 or 40%

Court Appointed Counsel

8 or 80%

1 or 1%

1 or 10%

10 or 100%

4 or 40%

Hearing Officers

7 or 70%

2 or 20%

1 or 10%

10 or 100%

1 or 10%

Judicial Law Clerks

3 or 100%

0 or 0%

0 or 0%

3 or 100%

1 or 33%

Masters

8 or 80%

1 or 10%

1 or 10%

10 or 100%

4 or 40%

Mediators

3 or 33%

0 or 0%

6 or 67%

9 or 100%

1 or 11%

Judicial Staff

8 or 89%

1 or 11%

0 or 0%

9 or 100%

2 or 22%

Other

5 or 71%

0 or 0%

2 or 29%

7 or 100%

2 or 29%

TABLE 18
Counties That Make an Effort to Recruit Women By Position
Yes

No

N/A

Total

25%+

Arbitrators

4 or 57%

2 or 29%

1 or 14%

7 or 100%

7 or 100%

Conflict Counsel

6 or 86%

0 or 0%

2 or 14%

7 or 100%

2 or 14%

Court Appointed Counsel

7 or 100%

0 or 0%

0 or 0%

7 or 100%

2 or 14%

Hearing Officers

6 or 100%

0 or 0%

0 or 0%

6 or 100%

3 or 50%

Judicial Law Clerks

3 or 100%

0 or 0%

0 or 0%

3 or 100%

1 or 33%

Masters

7 or 100%

0 or 0%

0 or 0%

7 or 100%

3 or 43%

Mediators

3 or 60%

0 or 0%

2 or 40%

5 or 100%

3 or 60%

Judicial Staff

8 or 100%

0 or 0%

0 or 0%

8 or 100%

5 or 63%

Other

3 or 60%

0 or 0%

2 or 40%

5 or 100%

1 or 20%

291

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

REVIEW OF COURT RECORDS

Experts and others recommend establishing
a panel of well-qualified attorneys, listed
alphabetically, from which a central court
administrator makes selections on a rotating basis.

292

The Committee sought information and records from a sampling of
county court administrators to determine how courts appoint
attorneys to represent indigent criminal defendants when taxpayerfunded public defender’s offices cannot do so.
The eight-county sample revealed the following methods of selection:
1. PHILADELPHIA COUNTY BAR ASSOCIATION—An attorney
must first be pre-qualified by the Philadelphia County Bar
Association and then must be endorsed by a judge. The judge
then has the discretion to decide whether or not the attorney
should be included on the rotation “wheel.” Attorneys are
randomly selected from the “wheel” and assigned to cases.
2. WESTMORELAND COUNTY—Each judge maintains his or her
own list and assigns attorneys based on the subject matter of the
case and the amount of work involved.
3. BUTLER COUNTY—The court administrator maintains an
alphabetical list of attorneys, from which he or she makes
selections on a rotating basis.
4. ERIE COUNTY—The trial division administrative judge appoints
attorneys with the approval of the president judge. The court
enters into contracts with the appointed attorneys.
5. DAUPHIN COUNTY—The president judge appoints attorneys,
based upon letters of interest received by the court. Contracts are
established with the interested attorneys for as long as the
attorneys desire. The court rotates through a list of contracted
attorneys when openings arise.
6. WASHINGTON COUNTY—Three attorneys are employed fulltime by the court on a contract basis. The attorneys are assigned
by rotation, based upon subject matter or caseload.
7. FAYETTE COUNTY—Two conflict attorneys are appointed by
the court. If the two conflict attorneys are unavailable, individual
judges make appointments from a list of interested attorneys.
8. ALLEGHENY COUNTY—Judges are permitted unlimited
discretion in making court appointments on an individual basis.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

The Committee concluded that while there is no common method of
appointing counsel in these types of cases, the practice of giving judges
unlimited discretion to make their own appointments can be problematic.
Experts say that having individual trial judges choose defense attorneys can
result in favoritism, which undermines public confidence in the system.55
Another possible consequence is that the attorney can feel beholden to the
judge for income, which can result in a perfunctory defense of an indigent
client.
An equally significant problem with full judicial discretion in appointments
is that women and minorities may be underrepresented on a judge’s private
list. That concern was clearly borne out in the data supplied to the
Committee by one county which uses that type of court appointment
system. For the years 2000–2001, only one woman and no minorities made
the list of the top 11 fee generators for court appointments in that county.
Moreover, the one woman had far fewer appointments than all but one of
the top eight appointees. The list of the top 25 fee generators included only
four women and no minority attorneys.56
Experts and others recommend establishing a panel of well-qualified
attorneys, listed alphabetically, from which a central court administrator
makes selections on a rotating basis.

PUBLIC HEARINGS
While only a few witnesses at the public hearings discussed the court
appointment process in the state justice system, they echoed comments
made by female and minority attorneys during other meetings and surveys
conducted by the Committee. Three primary concerns were raised by the
hearing testimony:
The minimal presence of minorities in the
state judiciary and in court administration leads
to the perception of limited appointment
opportunities for minorities.

During the testimony of Honorable Kathryn Lewis at the Philadelphia
public hearing, Committee member Honorable Nelson A. Diaz noted that
during his service as administrative judge in the Civil Division of the
Philadelphia Court of Common Pleas, “There had only been three African
Americans…in the history of this Commonwealth that [had] ever served on
the office court side.”57 He emphasized that people in such administrative

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positions can select recipients of contracts for court business and can
influence other court appointments. Judge Diaz also described an instance
in which he encountered resistance from a colleague when he recommended
the appointment of a Latino attorney to serve as a guardian in a matter
before the Orphan’s Court Division.58 He reported that his colleague did
not know the Latino attorney, but assumed that the man lacked the
competence to fill the position, even though he was a partner in a large and
respected Philadelphia law firm.

294

Similarly, attorney Felipe Restrepo, of the Hispanic Bar Association of
Pennsylvania, testified at the public hearing held in Harrisburg that there
are no Latino judges serving in the appellate judiciary in Pennsylvania.
Restrepo expressed concern that the lack of diversity on the bench has had
a negative impact on minority litigants and attorneys.59
Minorities and women are significantly
underrepresented on court appointment lists.

Attorney Shelley Pagac of Allegheny County testified at the Pittsburgh
public hearing in her role as co-chair of the Women’s Bar Association of
Allegheny County. She reported that she had canvassed approximately
45 female attorneys in Allegheny County in preparing her remarks.
She testified that women and minorities are underrepresented on court
appointment lists and that this underrepresentation prevents some
attorneys, particularly those who practice criminal law, from obtaining the
experience necessary to further their careers.60
Membership on Supreme Court of Pennsylvania
rules committees should be balanced by race and
gender to ensure that the impact of rules on
women and minorities is considered in
formulating the court rules.

Attorney Larry Frankel, director of the Pennsylvania American Civil
Liberties Union, testified at the Philadelphia public hearing about his
concern about diversity in membership on the rules committees appointed
by the Supreme Court of Pennsylvania, so that “consideration of race and
gender will consistently be taken as new rules are developed.”61 More
specifically, Frankel urged the Committee to recommend that the Court’s
rules committees not only be diverse in membership, but be directed to
consider the impact of changes in rules and procedures that may
disproportionately disadvantage women and minorities coming into the

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

court system. Frankel also pointed out that women and minorities are
among the people most likely to appear pro se without the assistance of an
attorney to guide them through the litigation process.

BEST PRACTICES
During the course of its research, the Committee identified one system of
appointment that is notable for its effort to provide equal opportunity for
all attorneys in the selection process: Allegheny County’s system for the
appointment of arbitrators. The key to its functioning is an eight-member
advisory committee, which is racially diverse and composed of males and
females. Plaintiff’s attorneys, defense attorneys and attorneys specializing in
landlord/tenant law are all represented on the advisory committee.
The advisory committee develops three lists of arbitrators to which an
attorney may be assigned. The first list comprises persons who will be
assigned as “chair” of the panel. To be considered for this list, an attorney
must have practiced for a minimum of five years. “Special arbitrators”
make up the second list of arbitrators; attorneys apply for this list if they
have expertise in a particular area of law. If an attorney is placed on either
of the first two lists, he or she will sit on a panel approximately 15 times
per year and will remain on the list for 10 years. The attorney must then
reapply to be considered for another 10-year appointment.
The third arbitrator on each panel is selected from a third list that contains
the names of any attorney licensed in Pennsylvania who has requested
to be on the list. Attorneys on the third list will be called for a panel
approximately once every two years.

SUMMARY OF FINDINGS
Despite a significant amount of variation in data across the
Commonwealth, the Committee was able to make the following
observations about court appointment systems.
1. There are no statewide standardized policies and procedures in place
that are used by county court systems to select individuals for court
appointments. Systems for selecting attorneys for court appointments
vary widely. Some counties use centralized alphabetical lists from which
court administrators select attorneys on a rotating basis. In other
counties, potential appointees serve at the discretion of individual

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EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

judges before whom they may have to appear, and whose approval is
needed for payment of fees.
2. President judges in each county make the majority of appointments,
with the exception of criminal court appointments.
3. The majority of counties do not create or maintain lists of attorney
candidates for court appointments from which selections are made.

296

4. Most courts do not use a formal recruitment system to fill appointed
positions such as conflict counsel, court-appointed criminal counsel,
masters, and mediators.
5. Most counties make no effort to recruit women or minorities for the
positions examined by the Committee.
6. The limited presence of minorities in the state judiciary, and court
administrative positions in particular, leads to the perception that there
are few court appointment opportunities for minorities. That
perception is affirmed by the fact that there are few minority
appointments in at least one large county in Pennsylvania.
7. The underrepresentation of female attorneys and minority attorneys in
court appointments reduces their opportunities to gain the experiences
necessary to further their careers.
8. Minority attorneys perceive that they are excluded from receiving court
appointments because they are not members of the “old boys’
network” of white male attorneys and judges.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

CONCLUSIONS
In its review of the racial, ethnic, and gender composition of the
Pennsylvania judiciary, the Committee concluded that progress has been
made in the diversification of the bench, but it remains disproportionately
white and male. As of 2002, women represent only 21 percent of the
Commonwealth judiciary, and minorities only 8 percent. One notable
exception among the courts is the Pennsylvania Commonwealth Court,
where women represent 55.5 percent of the court members.
The analysis of the racial, ethnic, and gender diversity of the
Commonwealth’s court personnel is complicated by the lack of data and
the variation of the personnel systems throughout the Commonwealth.
A review of the data collected by the Commonwealth’s appellate courts
reveals that females are well-represented among these courts’ personnel
(70–71 percent), but minorities comprise only 9 percent of the Superior
Court’s workforce and 8 percent of the Commonwealth Court’s staff.
With regard to judicial clerkships, only the Superior Court provided data
for the the Committee. The results indicated that women are wellrepresented among the court’s law clerks but minorities are even less
prevalent in these positions than in other jobs. Women comprise 61 percent
of Superior Court law clerks but minorities, only 5 percent.
Among the county courts, few collect racial, ethnic, and gender data on
their personnel. Moreover, job classification systems in each county were so
diverse that it was not possible to perform a meaningful comparison.
However, a review of the seven counties that did provide data on their
court personnel (including Philadelphia and Allegheny) revealed that
minorities are underrepresented in all of those court systems, and, with the
exception of Chester County, women are clustered in the non-supervisory
positions. Clearly, a standardized system of collecting and maintaining
racial, ethnic, and gender data on all court personnel in the Commonwealth
is needed in order to determine whether the courts are functioning as
employers in a fair and unbiased manner.
Similarly, in its study of the court appointment process the Committee
found many different methods of making appointments throughout the
Commonwealth. Appointees in some counties were selected by a court
administrator from a centralized alphabetical list of candidates, which

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EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

regularly rotated; others were appointed by individual judges who retain
full discretion in selecting from personal lists of candidates, or from no list
at all. Some complaints were registered by minorities during roundtable
discussions about being excluded from the court appointment process by
the “old boys’ network” of white attorneys and judges, and a review of one
county’s data on criminal court appointments for one year supported this
perception.

298

While recognizing the interest of the judiciary in retaining the discretion to
make their own appointments, the Committee concluded that this interest
must be balanced with the need to overcome the perception (and perhaps
the reality) that the system is not accessible to all races, ethnicities, and
genders. Seeking a diverse set of candidates for court appointments is
completely compatible with obtaining qualified and competent individuals
for the appointed tasks.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Direct court administrators to devise a statewide method of collecting
data on the racial, ethnic, and gender composition of the court
workforce.
2. Direct each court administrator to analyze the data collected pursuant
to Recommendation Number 1 and submit to the Court a standardized
written annual report of findings. 62
3. Establish as a goal increased opportunities for women and minorities to
receive judicial appointments and employment with the courts.63
4. Create a training session for judges and court administrators on the
responsibilities of the court in personnel matters.
5. Implement the resolution drafted by the Pennsylvania Bar Association
in 1994 for a voluntary check-off identifying the gender of lawyers
admitted to practice in Pennsylvania, and expand it to include race and
ethnicity so as to ensure adequate data collection.
6. Increase opportunities for promotion of minority and female judges and
lawyers into more responsible positions and policymaking assignments.

TO BAR ASSOCIATIONS
The Committee recommends that county bar associations:
1. Ensure adequate female and minority representation on judicial
evaluation committees.

TO THE AOPC AND COUNTY COURT
PERSONNEL OFFICES
The Committee recommends that the AOPC and county court personnel
offices:
1. Review all job descriptions to ensure that they are gender-neutral.
2. Make specific efforts to increase the number of women and minorities
holding highly paid, high-status jobs within the court system.
3. Develop written policies for promotion; discipline; training; annual,
sick and disability leaves; part-time and flex-time arrangements; and
job sharing. Seek ways to ensure the objective, consistent application of
such policies.

299

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

ENDNOTES
············································

300

1

The labels, “white” (W) and “non-white” (NW), were used to present this data because they were
the categories used by the AOPC in collecting this data. For purposes of this report only, “white” is
defined as Caucasian, and “non-white” includes all other racial and ethnic groups.

2

Calculations from information provided by AOPC. A district justice was not counted if it was noted
that the term expired or that he or she died, retired, or was not retained. The figures do not include
senior district justices.

3

While there are 67 counties within the Commonwealth, there are only 61 court administrators. Six
of the court administrators are responsible for administering the court systems in two counties each.

4

Id.

5

Census figures for non-white population are divided into several categories, making computation of
non-white population figures difficult. The Committee decided to compute the total non-white
population by subtracting the white population from the total population figure.

6

We are unable to determine whether comparisons between counties are valid since some counties
may have included certain employees, e.g., probation officers and/or law clerks, while others did
not. No judges or district justices are included here.

7

Judicial-related jobs include quasi-judicial positions such as hearing officer and master.

8

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of
Gender Bias in the Courtroom, Court Personnel, p.1 (2002), attached in Appendix Vol. II
[hereinafter Melior Group Gender Bias Court Personnel Report].

9

Id.

10

Id.

11

Id.

12

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, Judges Report, p.7 (2002), attached in Appendix Vol. II [hereinafter Melior
Group Racial Bias Judges Report].

13

Melior Group Gender Bias Court Personnel Report, supra at 6.

14

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, Court Personnel, p.1 (2002), attached in Appendix Vol. II [hereinafter
Melior Group Racial Bias Court Personnel Report].

15

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, Litigants Report, p.1 (2002), attached in Appendix Vol. II [hereinafter
Melior Group Racial Bias Litigants Report].

16

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, p.12 (2002), attached in Appendix Vol. II [hereinafter Melior Group Racial
Bias Report].

17

Id. at 10.

18

Id. at 12.

19

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, Attorneys Report, p.3 (2002), attached in Appendix Vol. II [hereinafter
Melior Group Racial Bias Attorneys Report].

20

Id. at p. 16.

21

Melior Group Racial Bias Judges Report, supra at 1.

EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

22

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of
Gender Bias in the Courtroom, Attorneys Report, p. 1 (2002), attached in Appendix Vol. II
[hereinafter Melior Group Gender Bias Attorneys Report].

23

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of
Gender Bias in the Courtroom, Judges Report, p. 8 (2002) [hereinafter Melior Group Gender Bias
Judges Report].

24

Id. at 3.

25

Melior Group Racial Bias Attorneys Report, supra at 5; Melior Group Racial Bias Court Personnel
Report, supra at 4.

26

Melior Group Racial Bias Court Personnel Report, supra at 4.

27

Id. at 13.

28

Melior Group Gender Bias Judges Report, supra at 9.

29

Id. at 9.

30

Id. at 14.

31

Id. at 11.

32

Id. at 14; Melior Group Racial Bias Litigants Report, supra at 2.

33

Melior Group Racial Bias Court Personnel Report, supra at 4.

34

A recommendation for a similar grievance procedure is set forth in the Report of the Third Circuit
Task Force on Equal Treatment in the Courts, 42 Vill. L. Rev. 1355, 1672 (1997).

35

Melior Group Gender Bias Court Personnel Report, supra at 7.

36

Id. at 7.

37

Testimony of Gary Horton, Erie Public Hearing Transcript, p. 11.

38

Testimony of Hon. Stephanie Domitrovich, Erie Public Hearing Transcript, p. 80.

39

Testimony of Beata Peck Little, Wilkes-Barre Public Hearing Transcript, pp. 12–13 [hereinafter
Peck Little Testimony]; According to the U.S. Census Bureau, there were 2,052 Latinos living in
Monroe County in 1990, compared with 9,195 in 2000, and the population of the African
American community of the county increased from 1,727 African American residents in 1990 to
8,343 African American residents in 2000. See Monroe County Needs Assessment, p.11;
http://www.unitedwaymonroe.org/needs/.

40

Peck Little Testimony, supra at 20.

41

Testimony of Iraida Afanador, Philadelphia Public Hearing Transcript, p. 96 [hereinafter Afanador
Testimony].

42

Testimony of Jerome Mondesire, Philadelphia Public Hearing Transcript, p. 48.

43

Id. at 53.

44

Testimony of Judith Ariola-Rivera, Wilkes-Barre Public Hearing Transcript, p. 39.

45

Id.

46

Afanador Testimony, supra at 96.

47

Testimony of Leroy Hodge, Pittsburgh Public Hearing Transcript, p. 142.

48

Afanador Testimony, supra at 96.

49

Testimony of Hon. John Younge, Philadelphia Public Hearing Transcript, pp. 160–162.

50

Testimony of Judy Berkman, Philadelphia Public Hearing Transcript, p. 223.

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EMPLOYMENT AND APPOINTMENT PRACTICES OF THE COURTS

51

Testimony at the various hearings conducted throughout the state also identified other appointed
positions: guardians, trustees, interpreters, experts, and court reporters.

52

The Honorable Stanton Wettick of the Allegheny County Court of Common Pleas, the Honorable
Joseph Del Sole of the Pennsylvania Superior Court, Commonwealth Court Executive
Administrator Ronald Darlington, and Superior Court Executive Administrator Mitchell Gruner
were among those interviewed by Work Group members.

53

The Committee extends its gratitude to Paul Kuntz, court administrator of Westmoreland County,
who not only provided assistance in the development of the survey, but also worked closely with the
other court administrators to assure that it was properly completed and returned.

54

When the Committee sent the survey to the court administrator or president judge of each county,
the respondents expanded the categories by identifying other court appointed positions: education
counselors, juvenile masters, and per diem clerks.

55

John Carroll, dean of Cumberland Law School at Stamford University in Birmingham, AL.

56

Data sheet, Allegheny County Court Administrator’s office, Court Appointed Counsel,
January–December 2000, attached in Appendix Vol. II.

57

Testimony of Honorable Nelson A. Diaz, Philadelphia Public Hearing Transcript, pp. 34–36.

58

Id. at 44–45.

59

Testimony of Felipe Restrepo, Harrisburg Public Hearing Transcript, pp. 84–85.

60

Testimony of Shelley Pagac, Pittsburgh Public Hearing Transcript, p.187.

61

Testimony of Larry Frankel, Philadelphia Public Hearing Transcript, p. 250.

62

A standardized listing of job classifications and method of collecting data is critical to the system.
The format of such reporting should be created by the AOPC. The purpose of this reporting should
be to create a profile of the racial, ethnic, and gender composition of the workforce and any trends
that have emerged. In particular, an analysis of this data, when received, should include promotion
patterns for higher level positions, career development, training, discipline, tracking of employee
complaints, performance evaluations, applicant pool tracking (applicants, interviewees, and final
hires), and salary comparisons. The establishment of a unified personnel tracking database will be
invaluable for forecasting purposes, budgetary preparation, employee deployment, measuring
attrition, determining the workforce profile in each of the counties, and tracking staff training
hours and expenditures. The analysis should also indicate the degree to which men and women are
hired into these positions from both internal and external applicant pools.

63

Specifically, the Committee recommends the following process for handling court employment and
appointments:

302

a. The courts should publicly solicit applications for court appointments and permanent jobs from
all groups including females and minorities, and should specifically identify the necessary
criteria. The administrative office of the New Jersey court system has an excellent program for
seeking minority candidates for judicial clerkships that could be replicated by the AOPC;
b. Those applicants who meet the criteria for appointments and permanent employment should be
placed on a list maintained either by the entire court or by the individual judges. The list should
be used to make court appointments and fill permanent job openings within the system; and
c. Care should be taken that appointments and permanent hiring from this list should be made or
offered equitably, such as on a rotating basis.

9

PERCEPTIONS AND
OCCURRENCES
OF RACIAL, ETHNIC,
AND GENDER BIAS
IN THE COURTROOM

304

INTRODUCTION

305

RACIAL AND ETHNIC BIAS

334

GENDER BIAS

366

MODEL CODES OF PROFESSIONAL CONDUCT

369

MODEL GRIEVANCE PROCEDURES

371

RECOMMENDATIONS

374

ENDNOTES

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

INTRODUCTION

304

While other chapters of this report discuss instances of bias in specific types
of legal cases and settings, this chapter discusses instances and perceptions
of racial, ethnic, and gender bias that cut across all aspects of the judicial
system. Specifically, the Committee reviewed instances of racial, ethnic, and
gender bias as perceived, reported and reflected by actual participants in
the judicial process—judges, attorneys, litigants, witnesses, and court
employees throughout Pennsylvania, in both the civil and criminal justice
systems.

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

RACIAL AND ETHNIC BIAS
Many people who come into contact with the Pennsylvania justice system
report that there is racial and ethnic bias within the system. While most
agree that intentionally offensive behavior has declined in recent decades,
many people of color still detect evidence of bias lingering in judicial
hallways, in the workplace, and in courtrooms. Bias may be evident when,
for instance, an African American attorney is called a derogatory, racially
inspired name. The signs of bias may also take a more subtle form when,
for example, counsel refers to an African American witness as “Johnny”
and a white witness as “Mr. Smith,” or when a court employee raises an
eyebrow as an African American man stands to answer the question “Who
represents the plaintiff?”
Through public hearings, interviews, focus group sessions, and other
research tools during the past two years, the Committee has grappled
with fundamental questions concerning courtroom speech or conduct that
calls attention to a person’s race or ethnic identity. When are comments
improper and demeaning? How does the court respond when a litigant has
been insulted, demeaned, or disrespected on the basis of race or ethnicity?
And when do disrespectful comments and behaviors materially undermine
the ability of a person to perform professionally in the courtroom?
Statements made to the Committee in public hearings and focus groups
suggest that, at a minimum, race- or ethnic-based comments and conduct
tip the courtroom’s level playing field, whether the persons being singled
out are attorneys, litigants, or witnesses. Expressions of bias impose upon
people of color a barrier to effective performance that does not exist for
white courtroom participants. Displays of respect and disrespect are
bound to register on judges and jurors as they make the myriad decisions
associated with a trial. Therefore, any conduct warrants scrutiny and
correction when it singles out one participant and places him or her in an
unfavorable light.
The Melior Group and V. Kramer & Associates conducted focus groups and
interviews on the topics of racial, ethnic, and gender bias in the courtroom.
During these sessions, they gathered “numerous accounts” of apparent
offhand comments that injected condescension or hostility into courtroom
proceedings. An assistant district attorney in Philadelphia, for instance, used
the term “boy” in reference to a 50-year-old African American defendant.1
Elsewhere, court personnel were overheard using stereotypical code-speak
(“What can you expect from them?”)2 to characterize litigants.

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PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

306

There can be no doubt that such statements are made. There is no need here,
however, to determine their frequency or precise location because, as the
attached final report of The Melior Group and V. Kramer & Associates notes,
arguments about the depth and breadth of racial or ethnic bias are “largely
extraneous,” or beside the point. “We think that the Committee should direct
its considerations to the central issue that is commonly expressed by the study’s
participants,” the report says. “That is, racial bias, whether emanating from
insensitivity, indifference, ignorance, or negative prejudice, compromises and
injures the parties affected. It fosters unequal treatment and unequal outcomes
in the one area where justice is sought.”3

Sources of Information
The Committee conducted an extensive literature review, examining more
than 20 recent task force reports on racial and ethnic bias from other states
and federal judicial circuits. Many of the reports regard perceptions of bias
as a critical element to be examined. As a judge said in the Second Circuit’s
1997 report on gender, racial, and ethnic fairness in federal court, “After all,
even if the courts are fair, unless those appearing in them think so, we have a
problem.”4 One consistent finding in most studies is that a large percentage
of women and people of color regard bias as common within the courts,
while men—and particularly white men—believe it occurs only in rare
instances. This finding appears to hold true for groups of judges, litigators,
witnesses, and litigants. A summary of key findings from other state and
federal task force reports, including the 1997 report of the Third Circuit
Task Force on Equal Treatment in the Court, is included later in this chapter.
The Committee found the same dichotomy in perceptions of biased conduct
in Pennsylvania that were noted in other state and federal task force reports.
The Committee reviewed prior relevant studies conducted in Pennsylvania,
notably the Philadelphia Bar Association’s 1988 Report of the Special
Committee on Employment of Minorities in the Legal Profession. The
Committee also generated current data through its own study conducted by
The Melior Group and V. Kramer & Associates and through public hearings
held throughout the Commonwealth. The consultants conducted interviews
with judges and litigants and held focus groups with attorneys and court
employees in Philadelphia, Erie, Harrisburg, and Pittsburgh.
Early in the study, the Committee developed a qualitative approach to gathering
data on this topic. The Committee chose this approach after recognizing the
limitations inherent in quantitative methods of data gathering, such as the use
of survey instruments. The Committee’s intent was to explore how and under
what circumstances bias is experienced and what its effects are, both perceived
and actual. Quantitative analysis is ineffective as a method of gathering data
that accurately and fully reflects the participants’ experiences.

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

After completion of its study, the Committee reached the general
conclusion that racial and ethnic bias within the judicial system still exists
throughout the Commonwealth, and that these perceptions of bias are, in
some instances, based on overtly discriminatory practices. This chapter will
document the evidence supporting the general conclusion.

SUMMARY OF THE MELIOR GROUP/
V. KRAMER & ASSOCIATES STUDY
The Melior Group and V. Kramer & Associates, referenced previously,
were engaged by the Committee to conduct focus groups and interviews
throughout the Commonwealth on the topics of racial, ethnic, and gender
bias in the courtroom. A total of 10 focus group sessions were conducted
among attorneys and court personnel throughout the Commonwealth.
Personal interviews were held with 18 judges and 10 litigants. The
participants in the interviews and in the focus groups were primarily African
American and white, with some representation from the Latino and Asian
American communities, and included both men and women. Based upon the
focus groups and interviews, the consultants’ final report cites several major
themes that were repeated by judges, attorneys and court personnel:5
•

Racial and ethnic bias in the courtroom is described by all participants as
rarely being overt. Rather, when it occurs, it is oblique; it has a “cover.”

•

Racially- and ethnically-biased actions in court compromise minority
attorneys and minority court personnel in the performance of their
responsibilities.

•

Minority litigants complained of unequal dispositions of cases (in
comparison to whites of similar status with similar cases) in criminal,
family and civil courts, based upon their racial and ethnic identity.

•

Some members of the judiciary were reported to be defensive when the
issue of racial or ethnic bias is brought to their attention. This attitude
discourages minority courtroom participants from seeking redress for
race- or ethnic-based inequities.

•

Power and responsibility to set the tone in the courtroom and effect
change rest with the judiciary.

•

Respondents from all focus groups called for strong standards to clarify
and rectify racial or ethnic bias in the justice system.

•

Most participants recommended some form of objective third-party
monitoring of courtroom procedures to corroborate the existence of
racial or ethnic bias or even mitigate its emergence in the courtroom.

•

Ongoing, meaningful training, supported by the Supreme Court of
Pennsylvania, can serve to inform, educate, and promulgate norms across
the Commonwealth’s system.

307

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

PENNSYLVANIA FINDINGS
MINORITIES ARE UNDERREPRESENTED WITHIN THE
PENNSYLVANIA JUDICIAL SYSTEM

308

“Minorities are educated by people that don’t look like them,
arrested by people that don’t look like them, represented by
people that don’t look like them, appear before judges that
don’t look like them, and are handed down verdicts from juries
that don’t look like them. The only time this changes is when
they are incarcerated…the only place minorities are
overrepresented…in Pennsylvania is the jails and prisons.”6
The statistical and anecdotal evidence demonstrates that minorities are
employed in disproportionately low numbers in the Pennsylvania bar, the
Pennsylvania judiciary, and the Pennsylvania court personnel system. The
statistics show periods of rapid improvement at certain times and in certain
areas; between 1976 and 1985, for example, the size of the minority bar in
Philadephia County nearly quadrupled, from 2.1 percent of the attorneys to
7.8 percent.7 Much of the increase, however, stemmed from a surge in the
numbers of minority attorneys in government agencies at a time when the
numbers of minority attorneys increased less dramatically at private firms
and actually declined in corporate jobs.8 Those numbers must be weighed
against an increase in the pool of minority graduates from law schools since
the 1970s, when many schools began attracting more women, African
American, Asian American, and Latino students. In the 2000–2001 school
year, minority enrollment was 20.6 percent of total Juris Doctor enrollment
at all American Bar Association (ABA)-approved law schools. During the
year 2000, the percentage of all Juris Doctor degrees awarded to minority
students was 19 percent. It increased to 20 percent in 2001.9

“The only place minorities are overrepresented…
in Pennsylvania is the jails and prisons.”
—Ronald Felton, NAACP

A sampling of recent statistics presents a grim picture of minority hiring in
the court system, indicating that perceptions of racial and ethnic bias are
borne out by statistical evidence. Presently, there are no minority assistant
federal public defenders in the Middle District of Pennsylvania, and only
two minority assistant federal public defenders in the Western District,
although many of the clients served by those offices are minority group
members. As of 2001, there were two minority attorneys in all of Beaver
County, an area northwest of Pittsburgh with a 7.5 percent minority

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population; both attorneys worked for Neighborhood Legal Services
Association, a publicly funded non-profit corporation. At the same time,
Beaver County had two minority deputy sheriffs; one minority court
employee working in the Recorder of Deeds offices; and no minority law
clerks.10 In Philadelphia, court employees voiced the common impression
that minority personnel often held positions of minimal authority with little
chance for advancement. 11 In Allegheny County, one attorney speaking at a
focus group acknowledged that there were African American females
working in the court, but “Black males, you don’t even see them working
in the courthouse. I mean I don’t even see them pushing the broom.”12 In
the offices of the Pennsylvania Superior and Commonwealth Courts, only
8 percent of the staff is non-white.13
Allegheny County currently has four full-time African American judges,
although the county’s minority population is more than 11 percent.14 Erie
County, with a minority population of 9 percent, has no African American
judges.15 Similarly, there are no African American judges in Lancaster
County, although the minority population is 8.5 percent.16 Monroe County
in Northeastern Pennsylvania has no African American or Latino judges,
district justices, or court administrators, despite a population that in 2000
was 6 percent African American and 6.6 percent Latino.17 Notably, Monroe
County’s African American population grew 383 percent between 1990 and
2000, while its Latino population grew 348 percent in the same period.18
The Committee found no record of a Latino judge ever serving on any
appellate court in Pennsylvania. When the question of Latino judges was
raised at public hearings in Harrisburg, one speaker responded that the
high cost of running for election made it prohibitive for Latino candidates
to run for office, much less for an appellate position.19
Chapter 2 of this report examines the jury selection process and documents
the absence of minorities from most juries throughout the Commonwealth.20
The perception is that minorities are generally underrepresented in jury panels,
and this underrepresentation is amplified later in the jury selection process as
prosecutors use peremptory challenges that further reduce the numbers.21 In
this regard, one attorney speaking at a Harrisburg focus group said ruefully
that conditions had improved in Dauphin County. “In the last five years you
get one black on your jury as a token.”22

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MINORITIES WITHIN THE JUDICIAL SYSTEM ARE
EXCLUDED FROM FULL AND EQUAL PARTICIPATION IN
THAT SYSTEM.

Several judges interviewed during the study observed
that certain courtrooms seem racially segregated, and
that certain job categories seem to be classified by race
and gender.

310

Minorities who are employed within the judicial system often believe that
their assignments are made at least partly on the basis of their race. Several
judges interviewed during the study observed that certain courtrooms seem
racially segregated, and that certain job categories seem to be classified by
race and gender.23 In Philadelphia, for example, the court system employed
six African American criers, five of whom were assigned to African American
judges. The sixth was assigned to a white judge, but was nevertheless paired
with one of the 12 African American court officers. At a focus group in
2001, Philadelphia court employees agreed that all African American court
officers were currently paired with either African American criers or African
American judges.24
Minority attorneys reported similar experiences in the private bar, raising
the specter of the “old boys’ network,” composed of white men, from
which many perceived themselves to be excluded. The 1988 Philadelphia
Bar Association study on minorities in the legal profession found that
private law firms that employed minority attorneys were more likely to hire
additional minority staff than were firms without a minority attorney. The
report described the “old boys’ network” as the firm’s reliance upon its
contacts—judges, colleagues and non-legal acquaintances—to recommend
potential applicants. Noting that a firm’s contacts are likely to have a racial
composition similar to the firm itself, the report said, “Smaller firms which
have minority partners appear to have access to a network of minority
lawyers who are available for lateral hiring.”25 The same report found that
when the “old boys’ network” does recommend a minority attorney for
hire, it tends to recommend that candidate either to a minority law firm or
to a fully integrated law firm.26
Once minorities obtain positions within the judicial system, they often
believe they are excluded from further advancement because of their race.
At the focus group of Philadelphia court employees, one person ventured
that African American employees remain “interspersed at the lowest levels

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of the court system. They’re not tiered up in middle management...there’s
not one black in higher management.”27 Similarly, the Third Circuit study
in 1997 found that minority employees held few supervisory positions
throughout the circuit and, consequently, earned relatively lower salaries
than white court employees.28
The effects of the “old boys’ network” are perceived to extend beyond the
hiring process and continue to be felt once a minority attorney begins to
practice. The Third Circuit report noted a perception by minority attorneys
that judges provided more informal access and deference to attorneys of
their own race or ethnicity.”29 And initial access to the system does not
guarantee advancement. One Allegheny County attorney noted that,
despite an extensive effort by some judges to hire minority law clerks,
“Once those clerks do their time with the judge…they’re not offered a
job…They’re just not taken seriously, they’re considered to have that job
just because they’re minorities.”30
Minority attorneys speaking at the focus group discussions also believed the
network served to exclude them from court appointments because of their
race. In Pittsburgh, an attorney said, “I did do some work with a judge and
I did see that…theirs is a small group of people that they would select from.
And if you weren’t in that group…”31 Other attorneys believed that they
were treated differently from white attorneys who were “buddies” with a
judge. “They’ll be communicating—acting like they’re friends—they’ll be
talking about those things they’re doing…[You] feel uncomfortable, like
they’ve already got the stuff made out before you get in there.”32 A judge
corroborated this perception in a separate interview, noting that a personal
relationship with an attorney might make a judge more tolerant of the
attorney’s behavior than perhaps he should be.33

CONSEQUENCES OF MINORITY
UNDERREPRESENTATION IN THE JUDICIAL SYSTEM
The Pennsylvania judicial system lacks a meaningful representation of
minorities,34 and this affects the system in myriad ways. The Third Circuit
concluded in its 1997 report that the small number of minority jurors,
judges, attorneys, and publicly visible court employees within the Circuit’s
judicial system is reason enough to fuel a perception of racial bias within
the system.35 Speakers at the public hearings and focus groups voiced similar
perceptions. Ted Darcus, of the Governor’s Commission on African
American Affairs, said, “Many individuals with whom I speak are afraid
of the justice system because they do not understand it…What further

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compounds their fears and sense of disenfranchisement is a lack of positive
role models within the justice system. They see few black judges, attorneys,
and other employees in the justice system, and even fewer black females.”36

“I’m the only black D.A.,” an attorney said at one focus
group. “There’s not even a black person working in the
office. And a lot of times I feel alone…Is this really
racial bias or is this—something else going on?”

312
Since so few minorities work in the judicial system,37 many feel that they
are not welcomed by the system. One attorney at the Pittsburgh focus
group summed up the situation: “If the courthouse is not representative
of minorities, if it’s a place where it’s uncomfortable to practice or you
feel like even if you are representing a client that you are immediately
disadvantaging yourself or your client, then it does impact you in the sense
that maybe you’re going to stay away from courthouse practice…or law
firms, even if they do hire you, will pigeonhole you in areas where you can
do no harm.”38
Some minority attorneys feel isolated and say they are perceived differently
because of their skin color. “I’m the only black D.A.,” an attorney said at
one focus group. “There’s not even a black person working in the office.
And a lot of times I feel alone…Is this really racial bias or is this—something
else going on?”39 Other minority attorneys said they were cautious about
associating with other minority persons in the courtroom, fearing that any
association, no matter how casual, would be perceived as their “being in
cahoots” with the other person.40
Attorneys at the Pittsburgh focus group also said the consistent lack of
African American jurors forced them to employ alternate strategies in
trying their cases. They said the situation affected their presentation, their
composure, and their aggressiveness in order to overcome an all-white
jury’s or judge’s stereotypes about their own role and competence, as
well as stereotypes about their minority client’s behavior and conduct.
“For many white jurors who don’t interact much with blacks, their
perception of black people [is] just what they draw from the evening news,”
one Pittsburgh focus group participant observed. “So when they get into a
courtroom and they are determining the fate of an African American
litigant…they have to overcome what they’ve seen already on television,
what they grew up understanding how black people are and how black

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people live. And at the same time, there’s nobody in the courtroom, other
than maybe the attorney for that litigant or that defendant, who is black.
There’s no black staff there to help them overcome that perception. There’s
no black judge to help them…So they’re left just with their perceptions in
determining the fate of that black person. And the outcome is often grim.”41
Attorneys discussed the need for minority jurors who can bring their
varying cultural and life experiences to bear on the decision-making
process. The attorneys said the presence of minority jurors would give the
appearance of a system where all had equal access to justice. The attorneys
also believed that the presence of African American jurors would inhibit
actual discriminatory or biased decision-making, whether done innocently
or with malicious intent.42

THE PERCEPTION THAT MINORITIES ARE VIEWED AS
INCOMPETENT
Many minorities expressed the view that there is an underlying but
widespread erroneous assumption throughout the Pennsylvania judicial
system that they are not competent to perform their jobs. This bias is
manifested in several ways, but most obviously by comments from other
court participants that belittle their abilities, and by lowered expectations
of their performance. Such comments may be well-intended—in instances,
for example, when someone expresses surprise and delight that the
minority employee is in fact performing in a competent manner. Bias may
also be couched within the related presumption that people of color cannot
be objective because of their minority status.
The Melior Group and V. Kramer & Associates quote in their final report
a white female judge’s opinion that “There is an undercurrent of belief
among judges and the bar that African American judges are not as smart as
Caucasian judges.”43
“We’re questioned more,” a minority Philadelphia attorney stated. “If I
come in and make a comment about the history of the case, the judge will
say, ‘Well, let me hear from the Commonwealth first. As if I’m a member of
the bar, but [the judge] doesn’t trust what [I] say.”44 A Harrisburg attorney
told about the presentation of an African American engineer as an expert
witness. Upon determining that the witness was, in fact, an engineer, the
judge asked to see the engineer’s credentials. “They don’t ask that of the
white professional engineers,” the attorney said.45

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A related issue is the perception by whites that minorities cannot be
objective about matters involving either white or African American
litigants. The underlying assumption is that minorities are less competent
than their white counterparts who can put aside their biases and render fair,
impartial decisions concerning all races at all times.

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Elizabeth Shuster, of the Pennsylvania Human Relations Commission,
illustrated the point in her comments at the Committee’s public hearing
in Harrisburg. She related an incident in which the late Judge A. Leon
Higginbotham Jr., of the Third Circuit Court of Appeals, was presiding
over a school discrimination case in which there were allegations of
preferential treatment for white students and substandard provisions for
minority students. The white respondents challenged Judge Higginbotham’s
impartiality because the case involved African American students. As
Shuster observed: “The racist implication—that a white judge would
be able to deal with a situation impartially, where white students were
benefited, whereas a black judge might not be able to or would not
be able to be impartial to the black students—was not lost on Judge
Higginbotham.”46 The judge did not recuse himself from the case.
As previously discussed, minorities are often struck from juries because of
a presumption that they will render biased verdicts. But, “We go to places
where you have black people in the juries in the majority all the time,” noted
an attorney at a Pittsburgh focus group. “Go to Birmingham, Alabama…the
juries are full of black people and they are putting black people in jail every
day. And they are denying black plaintiffs verdicts every day.”47

PERCEPTIONS THAT DIMINISHED STANDARDS AND
EXPECTATIONS ARE APPLIED TO MINORITIES
Minorities often perceive themselves as subject to a convoluted standard
that erroneously regards them as less than competent. Consequently, they
perceive that expectations concerning their performance are lower than
expectations for whites. One persistent problem is that supervisors may not
bother to critique or even review the work of minority attorneys, who feel
stung by the assumption that they are unable to do their jobs.48 A gap in
perceptions was also evident in the Third Circuit in its 1997 survey, which
found that 92 percent of all court employees felt women were encouraged
to attend professional seminars at the same rate as other employees, but
only 41 percent of female African American court employees believed
women were equally encouraged.49

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“Minorities are not given the opportunity to fail,” a Philadelphia attorney
said in an earlier survey. “The same opportunity might allow them to
succeed if they have the ability and desire to deal with all the ramifications
of a successful career.”50 Current information suggests that many minority
attorneys and court personnel continue to perceive that their careers are
hampered by their supervisors’ low expectations.
Another problem may arise when minorities do, in fact, succeed at their
jobs. Sometimes their colleagues register surprise. An attorney at a focus
group in Harrisburg commented on the “presumption of incompetence that
white people have about black lawyers.” The attorney went on, “For the
first year or two of my career, I wasn’t the shining star but people said good
things about me…because I was black and the expectations were very
low.”51 At the corresponding focus group in Philadelphia, another attorney
said: “What irks me is when white attorneys will come up to me and they
will have the audacity…to say, ‘My, you’re good at this.’” She observed,
“It’s because I’m black and I’m female. And they assume that we know
nothing—that they know everything. And I’ve been practicing law for
20 years. And I still get it.”52

DISRESPECTFUL CONDUCT DIRECTED TOWARDS
MINORITIES UNDERMINES THE FAIRNESS OF THE
JUSTICE SYSTEM
Names do hurt, and disrespectful comments can have a lasting harmful
effect, not only on the person to whom they are directed, but on others
within earshot. This is a widely held principle that applies inside and
outside the legal system. “To be effective as an attorney, your clients have
to see you as in a position of authority, power and respect,” a Harrisburg
attorney said during a focus group. “And if you walk in and you’re
immediately demeaned as soon as you come in—that’s going to impact
the client’s impression about you.”53

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In a most egregious incident of racially offensive
conduct by the court, an African American attorney
was admonished by a white judge in a suburban
Philadelphia county to, “stop being Stepin Fetchit”
because, in the judge’s opinion, the attorney was
taking too much time to conduct cross-examination
in the case.

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Memories of name-calling and biased remarks stretch across many
lifetimes. Although the injured parties often choose to keep the memories
to themselves, many shared their stories during the public hearings and
focus groups. Minority attorneys spoke about being addressed by their
first names or in other patronizing ways. An African American judge from
Philadelphia remembered being politely introduced at a bar association
committee meeting by her appropriate title and name. Then, however: “The
person who was presiding stood up and said, ‘And now we will welcome
one of our own,’ and then referred to the white judge who was in the
room.” She drew a clear conclusion from the statement. “I had been to
many of the committee meetings and I had participated in activities, so it
wasn’t that I was a stranger to the group. But apparently, for whatever
reason yet to me to be disclosed, I was not one of their own.”54
In a most egregious incident of racially offensive conduct by the court, an
African American attorney was admonished by a white judge in a suburban
Philadelphia county to, “stop being Stepin Fetchit” because, in the judge’s
opinion, the attorney was taking too much time to conduct crossexamination in the case.55
As stated earlier, differences in perceptions are clear in the Third Circuit’s 1997
survey, in which few of the white attorneys believed their race had an impact on
the treatment they received from the court, while significant numbers of Asian
American, Latino, and African American attorneys in that same survey believed
that race or ethnicity “always” or “sometimes” had an impact. 56
The issue of disrespect poses a subtle but persistent problem that in
some cases may be more troublesome than overt expressions of bias. One
extenuating factor is that people of color are attuned to the nuances of
disrespect, while many white people are not. A Philadelphia court employee
reported, for example, that a white person entering a courtroom would
typically ignore African American employees and would seek assistance
from white employees, even if it meant walking past several people.57

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Speaking at the focus group for Philadelphia court employees, a minority
court reporter related an incident in which she was wearing a suit while
training a much younger white woman in jeans. “The attorneys came over
and addressed her like she was the reporter…and I was just the trainee.”58
Another person in the same focus group observed, “When you first go into
the courtroom there is an ‘air.’ If you are not white when you walk into the
courtroom, most of the time you’re made to wait before anyone asks
you…They think you’re the defendant.”59
Attorneys are caught in the same set of assumptions. A minority attorney
from Harrisburg remembered, “I came in with a suit, briefcase, and all of
that and the judge—it was a criminal case—the judge asked me if I was the
defendant’s wife.”60 Another minority attorney in the same focus group
recalled walking with a white attorney toward a metal detector at the
York County courthouse. Both men were wearing suits and carrying
briefcases. The guard not only waved the white attorney through security,
but addressed him directly to say his African American “client” would have
to pass through the detector.

“If these things happen to you in the courtroom and
people see it or they think that blacks aren’t competent,
or minorities aren’t competent, the clients think the
same thing. And so if the clients think the same thing—
blacks can’t survive in business.”
—Harrisburg Attorney

“In some of my cases there will be an attorney who’s black on the other
side,” a female attorney told a Philadelphia focus group. In such cases she
has heard judges ask, “‘Oh, are you the attorney?’ They don’t ask that of a
white man in a suit.”61
Demeaning remarks and conduct produce an overall negative effect for
people of color within the court system. In the final report on the focus
group study, an attorney is quoted as saying, “How do you think our
clients feel when they come in with you and the judge and the staff are
talking down to you, while respectfully addressing the other lawyer? If the
judge is talking down to you, the client may think you’re not as good a
lawyer or the judge thinks you don’t have a very good case. The negative
effect of such treatment is tangible.”62

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Demeaning conduct and disrespectful speech are affronts to a person’s
pride and confidence, whether that person is a defendant, a witness, a court
worker, or a judge. Richard Garland, executive director of Youth Works,
noted in the Pittsburgh public hearing that, “Even if…[criminal defendants]
take a deal for a lighter sentence, the manner in which the judge talks to
them often times strips them of their pride even further…”63 Even judges
of color are reported to be treated disrespectfully. An attorney told the
Philadelphia focus group, “I’ve seen the black judges, where the white
attorneys would…be speaking down to them. You know, they aren’t getting
the same respect.”64
To counter a lack of respect, minority attorneys and court workers say they
must work hard and use different strategies to prove themselves, often to
no avail. “We come in defensive,” a Philadelphia attorney said, “because,
one, we anticipate and we assume…they’re going to disbelieve our clients.
And two, we adjust our strategies, our attitudes towards our clients.”65
Minority attorneys believe that clients and potential clients who witness
disrespectful actions will lose confidence in the attorneys’ ability to
represent them effectively in court. An attorney at the Harrisburg focus
group stated, “If these things happen to you in the courtroom and people
see it or they think that blacks aren’t competent, or minorities aren’t
competent, the clients think the same thing. And so if the clients think the
same thing—blacks can’t survive in business.”66

SPECIAL PROBLEMS IN EQUITABLE TREATMENT OF
MINORITY LITIGANTS AND DEFENDANTS
Testimony presented to the Committee demonstrates that many people in
minority communities are distrustful of the Pennsylvania judicial system
because of factors that include a lack of minority hiring, disrespectful
treatment of those who do hold jobs, and the system’s tendency to empanel
juries on which minorities are underrepresented.
Other factors also breed distrust. There are often wide cultural and
economic gaps between those who dispense justice and those who appear in
court to seek justice. Many people also report that police and prosecutors
focus too much attention upon members of minority communities, who, in
turn, believe that their own lack of resources will lead to inequities in
outcomes in both civil and criminal cases.

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It is apparent that the vast majority of Pennsylvania’s judges, attorneys,
court employees, and jurors are white.67 In small rural counties, court
personnel may have little or no sustained personal contact with persons of
color; even in larger counties, day-to-day experiences with minorities may
be limited. Despite this gap in real-life knowledge and experience, the
courts presume to make unbiased decisions that affect the life of a minority
litigant or defendant. Even with the best of intentions, this simple lack of
knowledge may impair the decision-maker’s ability to act in a fair manner.

Several judges acknowledged in interviews that there
is a “gap in experience and understanding between
middle-class Caucasian judges and poor minority
litigants.” One judge characterized the problem as an
“ivory tower” of upper-middle class biases on the part
of judges with little understanding of current family
dynamics and economic struggles.
“I am not trying to indicate that there is any one individual who is
purposefully racist…within the Luzerne County court system,” Carl
Romanelli, a former employee for the Luzerne County Child Support Unit,
said at the public hearing in Wilkes-Barre. “I will say, however, that a lack
of understanding, a lack of [sensitivity] causes many good-intentioned
people to be the unwitting tools of racism…”68
A similar point was raised in a Pittsburgh attorney focus group. “There
are things that black people in their culture do that white people have no
understanding about. I have to then try to educate a population—at the same
time as trying the case on a whole separate issue. That’s a daunting task.”69
Several judges acknowledged in interviews that there is a “gap in experience
and understanding between middle-class Caucasian judges and poor minority
litigants.” One judge characterized the problem as an “ivory tower” of uppermiddle class biases on the part of judges with little understanding of current
family dynamics and economic struggles.70 In this regard, the complications
of poverty may prevent a person from arriving on time for court, or from
dressing in a manner the judge deems appropriate. One point made in several
focus groups is that the judicial system does not necessarily understand today’s
litigants and defendants.

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Judy Ariola-Rivera, bilingual and bicultural domestic violence counselor
for Women’s Resources of Monroe County, said at the Wilkes-Barre public
hearing that white judges, “try to do the best they can,” but that some
“have no clue about diversity and differences in religion and culture and
ethnicity and why one would choose to leave [an abusive relationship] and
another one would not, or why one would feel intimidated and wear maybe
a very short skirt and…look a certain way while others don’t.”71

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Attorneys are sometimes caught in the reflection of their clients’ behavior.
When women are chastised by the court for dressing inappropriately, their
lawyers may simultaneously be warned that the court will no longer hear
them or see them if they cannot control their clients. Beata Peck Little, of
Women’s Resources of Monroe County, raised the point at the WilkesBarre hearing, saying the attorneys therefore become fearful, “that it will
affect other kinds of cases they do. For them to put their practice in such
jeopardy is not something that they can do.”72
There is another perception that poor people are further disadvantaged
because they cannot afford lawyers who can devote the requisite amount
of time and attention to their cases. Though court-appointed attorneys
are regarded as a pillar of the system and a primary safeguard of liberty,
minority defendants instantly recognize that the system is stacked against
them when, just as the trial is about to begin, they see a public defender
opening the case file for the first time. Richard Garland, referenced
previously, voiced a common dilemma at the Pittsburgh public hearing
when he said, “Most at-risk males as well as females don’t have the money
to hire a good attorney. When left with a public defender, who, most of the
time is overworked…he or she cannot give the necessary time needed
to…providing the best defense.”73
With minimal representation, minorities recognize that the outcomes
of their cases are adversely affected. With no case investigation and no
effective representation in sight, a defendant may accept a plea bargain as
the only way out of a no-win situation. “The client is threatened with the
maximum penalty and then forced into taking a deal so they don’t have to
sit in jail any longer,” Garland said. “Guilt and innocence frequently play
no part in the decision to accept a plea bargain. Even if they are innocent
they take a deal because of the cloud over this system: If you are black and
male you are going to get it. The phrase ‘innocent until proved guilty’ is not
something most black males believe.”74

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UNEQUAL OUTCOMES IN FACTUALLY SIMILAR CASES
Many minority defendants believe they have been treated differently from
white defendants, and that the outcomes of their cases have differed from
the outcomes of similar cases against white defendants. A Philadelphia
attorney reported his experience with a white male client who had been
charged with burglary. The man had a long record, yet the white judge
permitted him to go home. “I had a black male client the next day in front
of the same judge,” the attorney recalled. This client had a burglary and no
record. “He did not go home. He got a sentence of 11 months. I couldn’t
say anything, because they were both my clients.”75 In the Harrisburg focus
group, an attorney reported a case where the judge appeared to “take a
more fatherly role” towards a Greek defendant while structuring a sentence
“more strictly geared towards punishment” with his black co-defendant.76
These and other similar experiences have the overall effect of solidifying or
supporting the belief held by minorities that they receive unequal and unfair
treatment in the courts. “There is a clear perception in the African American
community that the system of justice does not work for us,” said Jerome
Mondesire, president of the Philadelphia NAACP at the Committee’s public
hearing in Philadelphia. “It is a widely held perception among African
Americans—irrespective of income and education—that if you are black, you
are more likely to be stopped, arrested, prosecuted and imprisoned than if you
are white. Similarly, the civil justice system places a lesser value on the loss of
your health and, in fact, the loss of our lives…because of our skin color.”77
This perception is corroborated by Pennsylvania’s statistics on racial and
ethnic disparities in sentencing,78 and by the Third Circuit study, which
concluded “even minority attorneys who [said they had] never experienced
racist treatment believed that there is a strong perception within minority
communities that racism does exist within the judicial system of this
Circuit.”79
As a result, minorities are often fearful of the judicial system, and the fear
has tangible implications. Fear, for example, can prevent minority victims
of domestic violence from obtaining legal protection when they have been
abused. Peck Little said at the Wilkes-Barre hearing, “Almost everyone you
have to share your story with is Caucasian and knows little about the
cultural aspects of your life, how you interact and communicate with
others, or the social mores which govern your behavior…you can begin to
see the difficulties faced by people of color who need assistance. For many,
these facts translate into not seeking assistance at all.”80

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SEARCHING FOR VIABLE REMEDIES

322

Aside from filing lawsuits in state or federal court, or making a formal
complaint to the Judicial Conduct Board, Pennsylvanians presently have
no statewide mechanism for making informal complaints about racial or
ethnic bias within the judicial system.81 Moreover, there are few viable
reporting or complaint procedures within the legal profession, and those
that exist are “form only,” with no meaningful remedies attached.
Additionally, the Committee heard from many people who said affronted
persons were reluctant to voice their complaints because they were afraid
of reprisals or of being perceived as whiners and troublemakers.
The issue of reporting complaints was raised at each focus group discussion.
Participants were asked to describe available remedies following raciallyor ethnically-biased incidents, but there were few examples. Several
Philadelphia attorneys were able to cite a formal disciplinary procedure,
although they acknowledged they did not often use it.82
If offensive conduct occurs during a trial, attorneys noted that they could put
their objections on record. Some Philadelphia attorneys, however, said they
believed an objection would “disappear” from the transcript in certain
courtrooms, and so would any record of the statement or conduct upon
which the objection was based.83 The topic of available remedies was also
discussed in interviews with judges, who acknowledged the practice of going
“off the record” but disagreed about whether a judge could or would edit
the record to remove potentially biased remarks. Some said they knew of
judges who did this, while others said the practice was a relic of the past.84
The judges did not report receiving any specific training in identifying or
resolving racial or ethnic bias issues.85 They said that racial or ethnic bias
typically was not a topic at judges’ meetings. “A number of judges stressed
the isolation of judges, one even calling the existence, ‘monastic,’” the
consultants reported. “One said no one wants to admit they might have a
bias and they don’t want to feel attacked. ‘If you bring up this subject, you
are either the attacker or the attacked.’”86
In general, respondents to the question about reporting bias overwhelmingly
said complaints were, at best, futile and, at worst, harmful. Persons who
had made formal complaints said that they were not believed and their
perceptions were “rationalized” away. A Pittsburgh attorney explained,
“As a black person…you feel that it’s racism, but at the same time coming
from someone else who is not like you, they’re not going to get it.” The
typical response, he said, is, “You’re complaining, you’re sensitive.”87

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Another attorney underlined the point: “It’s a very easy out and a
comfortable out for a white person to say, ‘Oh no, you’re just being
paranoid,’ or, ‘You’re just complaining or whining.’”88
Even worse is the fear that a person making a bias complaint will be
labeled a troublemaker. “If you get on the wrong side of one judge,” a
Pittsburgh attorney told the focus group: “there’s a very good opportunity
that you’ll get on the wrong side of a bunch of other judges.” The attorney
continued: “What you try to do is you try to appease them and…look the
other way and hope it doesn’t happen again.”89
Attorneys were concerned not only about their relations with judges, but
about the impact upon their clients. “No one can just say, ‘Hey, judge, you
were racist on Monday—why did you do that?’” a Philadelphia attorney
observed in the focus group. “The judge takes true offense to the fact that
you recognized that or questioned that he was racist—even though he
knows he was and you know he was. But for you to say that in open court,
on the record, puts you in a very bad light. And you have to work your
way back up that scale with him. And then you have to think, ‘What if he
damaged this client?’ Then [you] think the damage is going to be far worse
the next time [you] come in here with another client. So you have to
constantly think of what are the repercussions.”90
With no uniform grievance system in place—and no official
acknowledgment that racial or ethnic bias does surface within the judicial
system—attorneys are forced to weigh on their own the consequences of
making a complaint about racial or ethnic bias. The system itself currently
offers no guidance and no assistance. So some attorneys complain and
some do not. But without such complaints, and without remedies, the
problems will persist.

OTHER TASK FORCE FINDINGS
Nearly 25 other states have examined how perceptions of racial or ethnic
bias influence courtroom participants within their respective court systems.
At the federal level, the First, Second, Third, Ninth, and District of
Columbia (D.C.) Circuit Courts of Appeal have published the findings of
their task forces on racial or ethnic bias in the courts. This cumulative body
of knowledge is of particular importance today because of the rapidly
changing racial and ethnic composition of our country’s population. A
discussion of some representative reports, both state and federal, follows.

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STATE TASK FORCES
New Jersey

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The New Jersey Supreme Court began its effort in 1983 with an Ad Hoc
Working Group on Minority Concerns. The working group reported to the
New Jersey Supreme Court in 1984 and was succeeded in September 1985
by a 16-member Supreme Court Task Force. The task force was expanded
to 48 members in January 1986 and produced its final report in 1992.
One year after the submission of the final report, the task force published
a special report on the differential use of the court by minorities and nonminorities. Its mission was to focus “primarily on access issues that surface
in the civil courts,” in order to “develop methods for the identification of
1) real and perceived barriers to racial, ethnic and cultural minorities who
elect to use the courts, and 2) the reasons why minorities with a need to use
the court do not.”91
In its report, the New Jersey task force looked at racial and ethnic
perceptions of the court system through a socioeconomic lens. As noted
in the report, one of the primary reasons why minorities do not use the
courts, even when they need to, is that they lack confidence in the court
system. This mistrust is partly due to insufficient knowledge of the system,
but it also comes from the widespread perception that: “There is a direct
correlation between how much money one has and the probability of
prevailing in the courts.”92 Much of the public hearing testimony gathered
by the task force showed that because most minorities are acted upon in the
judicial system, rather than initiating an action, “they view economics or
their lack of wealth as making them victims in a system that presupposes
financial resources.”93 Thus, this task force found that minority access to
the court system was impeded by lack of knowledge as well as by
socioeconomic status, and that perceptions of fairness and access were
intertwined with these conditions.

Michigan
In 1987, the Michigan Supreme Court created the Task Force on
Racial/Ethnic Issues in the Courts in response to a call for action from
the Michigan Supreme Court Citizen’s Commission to Improve Michigan
Courts. The task force considered perceptions of bias to be of particular
importance because of the damage racial bias causes to the lives of parties,
court professionals, and the court system itself.94 It found that racial and
ethnic minorities, as well as many non-minorities, perceive that the
Michigan justice system, and court personnel in particular, engage in
discriminatory behavior.95

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Florida
Florida published its initial report in 1990, and prepared a Ten-Year
Retrospect of the Report in December 2000. The 2000 retrospect notes that
while much work has been done, “racial and ethnic bias in the justice system
continues at an unacceptable rate.”96 For example, in the 10 years from 1990
to 2000, the number of minority judges in Florida increased from 5.8 percent
to 11.4 percent at the trial court level, from 3.5 percent to 14.7 percent at
the district court level and from 14.2 percent to 28.5 percent at the supreme
court level, but the judiciary as a whole still failed to reflect the “rich cultural
diversity” of the state.97 Similar levels of improvement were noted in court
staffing, although with notably less significant improvement in leadership
positions and higher-level job classifications.98 Less progress was made in
increasing the number of minorities in the Florida bar, which still trails the
national average, although not all attorneys respond to the call for such
information and the Florida bar collects racial information on a voluntary
basis.99

Washington
The initial findings of the Minority and Justice Task Force of Washington
State were also published in 1990. Not surprisingly, the report noted themes
common to those found in other states. More recently, however, the 2001
Annual Report of the Washington State Minority and Justice Commission
highlighted the findings of a 1999 telephone survey conducted by the
Washington State Office of the Administrator for the Courts that was similar
to the National Center for State Courts survey of the same year. The results
of the 2001 Washington survey showed a remarkable disparity in the general
perceptions of minorities regarding the justice system.
The Washington state survey was comparable to the national survey in
showing that 70 percent or more of the public had either a great deal of
confidence or some confidence in the courts. However, as also seen in the
national survey, confidence among African Americans was far less—only
14 percent in Washington said they had a great deal of confidence, 42 percent
said they had some confidence, and 15 percent said they had no confidence.
Among Latinos, 29 percent said they had little or no confidence in the local
courts. Those polled were also questioned about their perceptions of the state
of equality for various groups in the court system. When the groups were
broken down by racial and ethnic composition, each group felt it was treated
worse than the population as a whole—56 percent of African Americans felt
that way, along with 56 percent of Latinos, and 59 percent of non-English
speaking people.

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Survey respondents also felt in large numbers that most juries are not
representative of the community. Very significantly, the responses demonstrated
that people were not looking for special treatment when they went to court, but
wanted the judge to follow the law fairly and impartially. Instead, in response to
questions about fairness and objectivity, 81 percent felt that judges’ decisions
were influenced by political considerations; that elected judges were influenced
by having to raise campaign funds; that cases were not resolved in a timely
manner; that information needed to proceed with a case was not readily
available to the public; and that court rules and procedures were not easy to
understand.100

New York
In 1991, the New York State Judicial Commission examined the
perceptions of the treatment of minorities in the judicial system. The
commission concluded that, among minority litigants, there was a
perception that they were not treated fairly by the various court systems.101
It also found that nearly half of all litigators in the survey reported personal
experiences of unfair or biased treatment of minority attorneys, litigants,
jurors, or witnesses in New York courtrooms.102 In addition, surveys of
litigators demonstrated the existence of a perception gap regarding hiring
and promotion opportunities between minority and white attorneys.
A majority of African American litigators perceived that they needed
extraordinary qualifications if they were to be hired or promoted, while,
in contrast, white litigators perceived that standards were lower for
minority attorneys.103

Massachusetts
In 1993, the Massachusetts Supreme Judicial Court Commission to Study
Racial and Ethnic Bias in the Courts also found widespread perceptions
of racial and ethnic bias pervading the Massachusetts court system. The
chairperson of the commission, in a preface to the report, wrote: “I regret to
report that it is the perception of many lawyers, community members, judges,
and focus groups that disparate treatment toward racial and ethnic minorities
exists within courts of the Commonwealth. Our research corroborates this
perception.”104 The commission found a negative perception of minority
attorneys in Massachusetts by their white counterparts and white judges, with
large percentages of minority attorneys reporting that they “sometimes” or
“usually” heard jokes or demeaning comments based on race.105 Furthermore,
the commission reported the perception that jurors in Massachusetts, most of
whom were white, tended to favor litigants and attorneys of their own race.106

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Oregon
In 1994, the Report of the Oregon Supreme Court Task Force on Racial/
Ethnic Issues in the Judicial System explicitly stated in the introduction that,
“Non-minorities (sic) have brought about many of the problems that minorities
encounter…Addressing these problems, and ultimately solving them, is the joint
responsibility of minorities and non-minorities.”107 By framing the problem this
way at the very beginning of the report, the Oregon task force attempted to
address, head-on, the belief held by non-minorities that they do not cause such
problems. The Oregon task force concluded that this attitude, coupled with the
fact that many minorities were raised in a culture where discrimination was
common or even accepted, meant that, “Minorities and non-minorities alike
must work together to solve these problems.”108

Connecticut
The State of Connecticut Judicial Branch Task Force on Minority Fairness
published its full report in April 1996. The discussion of perceptions in
this report focused mostly on the recruitment and retention of minority
attorneys in the legal workplace. Some of the key factors concerning
retention were related to perceptions of the judicial system or to the
practice of law in the workplace. The findings of the Connecticut task force
in this area revealed the same split in perceptions that had been evident in
other states and in other areas of the system. For example, one judge said,
“Hiring is not a source of bias; the problem is to get minority people to
take the positions.”109 One reason for any such reluctance, however, is the
perception of minorities that the system is “too white.” This creates “a
great sense of loneliness” for the minority lawyer who is not included in
the “old boys’ network” of “invitations for lunch, after-work drinks, or
weekend social events, but who is still subject to the expectation that he or
she should assimilate into “mainstream ‘blue-blood’ culture.”110 Similarly,
the report observed: “There is a perception that minority attorneys in
Connecticut enter the public sector and focus on small firms,” perhaps
because they believe they have a “greater opportunity of being hired” or
feel that hiring practices are more open in the public sector and in the
smaller private firms.111 This belief goes hand-in-hand with the perception
that minority attorneys do not have comparable opportunities for being
assigned cases or promotions. The Connecticut task force found that:
“Minority attorneys are much more likely than Caucasian attorneys to
perceive that minority attorneys are often or very often assigned more
limited, less complex and less remunerative cases than non-minority
attorneys.”112 Eighty-seven percent of minorities participating in the task

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force survey felt that a minority attorney was less likely to receive a
supervisory or partner position than was a non-minority of comparable
experience, and, significantly, 43 percent of the responding judges agreed
that the statement was true more than a quarter of the time.113

Ohio

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Most recently, the Ohio Commission on Racial Fairness, which was
commissioned by the Supreme Court of Ohio, published its final report
in 1999. Most of the judges surveyed by the Ohio commission, “regardless
of their ethnic background, perceived little racial bias in judicial processes
such as jury selection, setting bail, and professional etiquette.”114 The
attorneys in the survey, however, reported significant differences in how
whites and minorities, especially African Americans, perceived the degrees
and effects of racial and ethnic bias. The effects included perceptions that
had been noted in other states, such as: reduced opportunities for minority
attorneys and more problems for minority attorneys who do operate within
the system; fewer mentoring opportunities for minorities; the view that
hiring preferences are granted to whites; and the general beliefs that
minority defendants do not receive equal treatment and that the judicial
system treats all minorities “unfairly.”115

FEDERAL TASK FORCES
D.C. Circuit
When the Gender, Race and Ethnic Bias Task Force Project in the D.C.
Circuit was created in 1990, its Special Committee on Race and Ethnicity
was the first in the country to address the ways in which race and ethnicity
might affect federal courts by examining the “work and worklife of the
courts of the D.C. Circuit.”116 The Committee’s research tools included
surveys, interviews, focus groups, and public hearings. The D.C. Circuit is
unique because the majority of its population is African American and, at
the same time, it is, “geographically small and entirely urban, and all of the
courts of the Circuit are housed in one building.”117
Despite a widely varied research agenda, the special committee noted one
consistent theme: That one’s view of the effect of race and ethnicity on the
work of the courts depends largely on the racial and ethnic perspective of the
viewer.118 In relation to this finding, one of the most significant problems
found by the D.C. task force was the lack of effective discrimination complaint
procedures and practices. The most common complaints about these procedures

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included the following: 1) the process was not perceived to be impartial or
neutral; 2) discrimination procedures were perceived to lack confidentiality;
3) employees at all levels within the courthouse workforce, including managers,
reported that employees who had used the discrimination complaint process
had routinely had negative experiences; and 4) discrimination complaints were
perceived to be handled too slowly.119

Ninth Circuit
Formed in 1993, the Ninth Circuit Task Force on Racial, Religious
& Ethnic Fairness published its final report in 1997. As a result of financial
and logistical constraints, the Ninth Circuit Task Force did not survey the
perceptions of litigants and members of the public regarding the effects of
racial or ethnic bias on the litigation process. It did, however, review the
perceptions of court employees about the effects of race, religion, or
ethnicity on various aspects of their employment with the courts. The task
force also surveyed judges and attorneys to ascertain if and how these
issues affected the litigation process. All Ninth Circuit employees, both
white and minority, reported that the courts of the Ninth Circuit were
generally fair employers, although about 33 percent of court employees
“reported having heard demeaning or disparaging comments based upon
gender, race or ethnicity,” with the two most frequent sources of such
statements reported as “court staff or members of the public.”120 In general,
most judges agreed that there was a sense of collegiality among the judges
of their court, but fewer minority judges felt that this was the case, or
that all judges communicated openly about non-case specific issues or
problems.121 Few lawyers in the Ninth Circuit reported observing bias
among the judiciary, but criminal defense attorneys and assistant federal
public defenders reported many more instances of bias than other
attorneys, and bias based on language or accent was reported as often
as bias based on race, ethnicity, or perceived immigration status.122

Second Circuit
The report of the Second Circuit Task Force on Gender, Racial and Ethnic
Fairness in the Courts, published in 1997, sought to determine, “whether,
among persons or groups who use or work in the courts, any bias or
unfairness is, for whatever reasons, subjectively believed or perceived
to exist.”123 The task force found a perception among minority attorneys
in the Second Circuit that members of their own groups are more
disadvantaged than those of other groups.124 Minority attorneys who
practice in the Second Circuit also reported that they observed or

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personally experienced forms of racial or ethnic bias in their professional
interactions on a very regular basis.125 These reports of bias by minority
attorneys were not shared by their white counterparts, nor were their
perceptions shared by judges in the Second Circuit. Judges and white male
attorneys in the survey perceived that the Second Circuit was colorblind to
those who practiced in it, and that race and gender did not affect the
operation of the courts.126

Third Circuit

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The Third Circuit Task Force on Equal Treatment in the Courts also
published its final report in 1997, even though the task force was formed
in 1994, a year later than the Ninth and Second Circuit task forces. The
Third Circuit found that “Even minority attorneys who had never directly
experienced racist treatment believed that there is a strong perception
within minority communities that racism does exist within the judicial
system of this circuit.”127 Such perceptions were evident in the response of
minority court employees when asked how they believed they were treated
in comparison with their co-workers, “[F]or example, only 4.2 percent of
white court employees felt that they were treated with less respect based
upon their race or ethnicity, while about 25 percent of all minority [court
employee] respondents perceived less respectful treatment.”128 The task
force also circulated a survey to attorneys that “specifically inquired of
attorneys as to the extent they believed their race or ethnicity affected their
treatment in the Third Circuit.”129 The survey found that just 2.5 percent of
white attorneys practicing in the Third Circuit believed their race had an
impact on the treatment they received, while 22 percent of Asian American
attorneys, 26 percent of Latino attorneys, and 40 percent of African
American attorneys reported that race or ethnicity “always” or
“sometimes” had an impact.130 It is also important to note that the Third
Circuit Task Force found that minority employees held few supervisory
positions throughout the circuit and, consequently, that they earned
relatively lower salaries than white court employees.131 The task force
concluded that the very fact that there were such small numbers of minority
jurors, judges, attorneys, and publicly visible court employees within the
circuit’s judicial system was reason enough to fuel the perception of racial
bias within that system.132

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CONCLUSION
The manifestations of racial or ethnic bias within Pennsylvania’s judicial
system may be overt or subtle, inadvertent or intentional. People may have
their private reasons for engaging in objectionable conduct, but in any case
there are no acceptable excuses. Explanations do not transform objectionable
conduct into benign behavior. In this regard, outcomes trump intentions and
the offending party’s excuse, “I meant no harm,” is generally beside the point.
If a person perceives that biased speech or conduct is interfering with the
discharge of his or her duties, then that behavior must, in fact, be regarded
as biased, regardless of the speaker’s intent.133
In this context, however, one could argue that there is still an important
difference between perceived and actual bias. “Perceived” implies that
conduct can be adjudged as biased only in the mind of the perceiver,
regardless of the actor’s intentions or beliefs. When a judge, for example,
questions a minority attorney about the legal sources for his motion, must
the judge also ask similar questions of the other attorney in the case?134
And if the judge does not, is this an example of racially- or ethnicallybiased conduct? The answer is debatable because there are plausible nonracial or non-ethnic explanations for the judge’s engaging in the line of
questioning.
The conduct in this example appears different from conduct that is
universally considered an expression of bias, such as calling an African
American a derogatory, racially-inspired name. The two examples,
however, may not be different at all. The judge may be questioning the
attorney’s competence and knowledge because he or she believes the
attorney to be inexperienced and incompetent, or the judge may be asking
the questions simply because of the color of the attorney’s skin. Conduct
that appears unobjectionable may also be cloaking actual bias. For
example, arguments that the striking of all potential African American
jurors is based on sound voir dire principles can, “fail or refuse to
acknowledge that the outcome of those policies can engender inequitable
circumstances when [all] minorities are excluded.”135 When a Philadelphia
court employee was challenged in a focus group about his belief that
eliminating minorities from juries was an example of racial bias, the
employee responded, “That’s the new racism. When they wouldn’t serve
you at the lunch counter, everybody could believe that was racism. But now
where it’s institutionalized…it’s hard…to come to a definition of what it is
and if it is there but you know it because you’re black and you feel it.”136

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The lack of overtly biased language or behavior should not allow us to feel
complacent. Attorney Susan Yohe, former chairperson of the Allegheny
County Bar Association’s Women and the Law Committee who has
represented clients in employment discrimination cases, said at the
Pittsburgh public hearing that, over the years, such cases have become
more difficult to prove. “Few of us believe that this is because employment
discrimination has been eradicated throughout the land…Rather, it is at
least in part because what has been almost entirely eradicated is careless
talk about discrimination…and this is good…But we should never equate
the absence of discriminatory language with the absence of
discrimination.”137
Another attorney at a Pittsburgh focus group told of an all-white jury verdict
in favor of his three African American clients but with very low monetary
damage awards. Afterward, one juror complained that her colleagues had
spent two-and-a-half days in the jury room telling racial jokes. “And they
finally decided—there’s no question of liability—we just can’t give these
people that much money because they’ll quit their jobs and stay home and
drink malt liquor.” The judge subsequently granted counsel’s motion for a
new trial, a bench trial, on the issue of damages.138
The Committee concludes that it is a mistake to concentrate on the
supposed differences between perceived and actual manifestations of bias.
To do so would be to deflect attention away from the fact that racial and
ethnic bias continues to exist within the Pennsylvania judicial system, just
as it exists throughout American society. As the Third Circuit concluded,
“Regardless of whether perceptions are rooted in social factors beyond the
court’s control, or stem from specific conduct that has been interpreted as
reflecting unequal treatment by a member of the court community, the
courts…should consider, on an ongoing basis, how best to reduce these
perceptions.”139

“I urge you not to exhaust your energy and your scarce
resources of time and money on just identifying
problems. Equal justice for all will only be guaranteed,
or at least furthered, by the development and
implementation of an action plan to eradicate racial
and gender bias wherever it is.”
—Honorable Kathryn S. Lewis

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It would be erroneous, in other words, to conclude from this report that
racial and ethnic bias has been eradicated from the system. The experiences
and grievances of those who spoke directly and indirectly to the Committee
must not only be acknowledged, but acted upon. Minorities want the reality
of bias to be eradicated, not simply the perceptions of those who are
victimized by it.
As Dr. Stan Hamilton said at the public hearing in Wilkes-Barre: “There’s
been lots of commissions and studies, throughout the nation, on racial bias.
It’s been repeated year after year, decade after decade. The question is what
are you going to do? You and I both know you’ve heard everything I’m
going to say before. It’s all been documented. It’s no secret. The only thing
you need to hear now is a human cry from the American people: Do
something. Do something and do it now. Take an action. After today,
you will all be found guilty, every one of you, guilty of procrastination,
manipulation, and even fraud, unless, of course, you do something.”140
If these perceptions are ignored by the system, they will not simply disappear.
They will persist and will continue to undermine confidence in our judicial
system. If this system does not respond with a proactive approach, it will be
criticized rightly for tolerating racial or ethnic bias or, at worst, condoning
the behavior that gives rise to perceptions of bias.
This Committee urges the Pennsylvania Supreme Court to heed the words
of Honorable Kathryn S. Lewis, of the Philadelphia Court of Common
Pleas, who spoke during the Philadelphia public hearing: “I urge you not to
exhaust your energy and your scarce resources of time and money on just
identifying problems. Equal justice for all will only be guaranteed, or at
least furthered, by the development and implementation of an action plan
to eradicate racial and gender bias wherever it is.”
She continued: “When actions premised upon racial or gender bias enter
our courts and we fail to question or, more specifically, to denounce such
actions, by our inactions, conscious or unconscious, we are guilty of
condoning such bias. The consequence of our failures and dangers in some
cases destroys the promise of equal justice for all.”141

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GENDER BIAS

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During the past 30 years, Americans have altered their perceptions
of women’s roles in society. One sign of this change is the increased
participation of women in the justice system. Women are employed as
judges, attorneys, and court personnel, and they appear before the court as
witnesses and litigants. The growing presence of women makes it tempting
to conclude that gender bias142 within the judicial system has waned since
the 1970s.
Research by the Committee shows, however, that gender inequality persists
even as more women have filled a greater variety of positions and have
increased their participation in the system. Expressions of bias still resound
through the system, making it difficult at best for women to appear before
the court on an equal footing with men.
Many people working within the justice system believe that persistent
gender bias prevents women, regardless of their roles in the system, from
receiving the courtesy and respect they deserve. Speaking at public hearings,
interviews, and focus groups held throughout Pennsylvania, female lawyers
spoke of encountering gender bias through comments and behaviors that
call into question their credibility and competence to perform their jobs,
subjecting them to what many regard as a more rigid application of rules
than their male counterparts’ experience.
Female attorneys reported that they commonly hear derogatory, genderspecific language, including comments about their bodies. Many female
lawyers find that their work is scrutinized and judged more harshly than
the work of men, and that shortcomings in their work are attributed to
their gender. They say they are frustrated by their inability to engage in the
easy camaraderie enjoyed among many male lawyers and judges. Female
lawyers and court personnel also agreed that gender bias affects the
credibility of female litigants and witnesses.
Likewise, female judges—who sit in only 26 of the Commonwealth’s
67 counties143—expressed in private interviews a sense of simply not being
“heard” by their male colleagues; that is, their male colleagues fail to respond
to their comments or validate their expressions of opinion.

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Most female participants in the justice system, whether court personnel,
litigants, lawyers, or judges, were reluctant to complain formally about
their treatment. They noted emphatically that there can be significant risks
to their careers and clients’ cases can be jeopardized if they pursue remedies
when bias occurs.
Despite their reluctance to report instances of bias, many women do not
believe the situation is without hope. They perceive the judiciary as being
in a unique position to set the appropriate standard of conduct so that all
people are treated fairly throughout the justice system.

Scope of Inquiry
The Committee reviewed instances of gender bias throughout the judicial
system, paralleling its study of racial and ethnic bias in the courtroom. The
Committee collected data from relevant studies, public hearings, and a
series of focus groups144 and personal interviews. Reports from other state
task forces were also reviewed. The findings from all sources are set forth
below.

PENNSYLVANIA SOURCES
MELIOR GROUP/V. KRAMER & ASSOCIATES STUDY
The Melior Group and V. Kramer & Associates, referenced previously,
conduced focus groups and interviews on the topic of gender bias in the
courtroom as well. The focus groups were composed only of women, but
men were also included in the interviews with judges and litigants. Drawing
upon the focus groups and interviews, the consultants’ final report cites
several major themes repeated by judges, attorneys, court personnel, and
litigants:
•

Respondents described a system in which judges, lawyers, and court
personnel experience and display gender bias in the courtroom.

•

Everyone, regardless of position, brings assumptions and prior
experiences into the courtroom. Some people are more conscious of this
than others; education and training should deal with this fact and redress
any consequent problems.

•

Gender bias is manifested in spoken words, in the demeanor of male
judges and attorneys, and in the application of different standards and
requirements for male and female attorneys.

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•

Gender bias is more evident in criminal and family courts than in other
courts.

•

Bias appears to be involved in the clustering of female court personnel in
certain lower-level jobs.

•

Gender bias is both overt and subtle. When subtle, it is often difficult to
link to outcomes. As a result, it can be difficult to demonstrate the effects
of gender bias in an individual case.

•

Bias has real effects on outcomes. Bias affects determinations of
innocence or guilt, severity of sentences, size of damage awards, custody
and support awards, and issuance of protection from abuse orders in
situations that can result in injury or even death.

•

Economic status and class intersects with gender and race, has a
significant effect on a litigant’s courtroom experience and can affect the
outcome of a case.

•

Under current procedures for making complaints of bias, many attorneys
and court personnel believe the risks—to their own careers and, if
attorneys, to their clients—prevent them from coming forward.

•

The judiciary has the power and responsibility to set the tone in the
courtroom and effect change.

336

PENNSYLVANIA BAR ASSOCIATION JOINT TASK FORCE
TO ENSURE GENDER FAIRNESS IN THE COURTS
INTERIM REPORTS
In 1993, the Pennsylvania Conference of State Trial Judges and the
Pennsylvania Bar Association (PBA) established the Joint Task Force to
Ensure Gender Fairness in the Courts. Its mission was, first, to determine
and evaluate the extent to which gender bias exists, and, second, to
formulate and disseminate solutions and recommendations to promote
gender fairness. The Task Force contracted with a social scientist, Professor
Phyllis Coontz, Ph.D., of the University of Pittsburgh, to design surveys,
analyze the results, and report on the findings.

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The Joint Task Force issued its First Interim Report in 1995 to present its
findings from a statewide survey of attorneys practicing in Pennsylvania.
A copy of the First Interim Report is attached in Appendix Vol. II. The
attorney survey revealed the following:
•

A wage gap: female attorneys earned on the average of $30,000 less than
male attorneys in all earnings categories.

•

A glass ceiling: both male and female respondents indicated a
conspicuous absence of women in senior positions.
− Twenty-nine percent of the female attorneys responded that they
worked in organizations or firms where there were no women in senior
level positions;
− A majority, 53 percent, of the men responded that they worked where
there were no women in senior level positions.

The report also presented findings regarding different experiences of male and
female attorneys in the workplace and in court. The attorney survey asked
men and women about their experiences with other legal professionals,
including lawyers, judges, co-workers, and court employees. The results
showed overwhelmingly that men and women reported differences in their
professional experiences. The differences revealed in the survey regarding
professional interactions between men and women included the following:
•

Women were more likely than men to be called by their first names;

•

Women were more likely than men to be exposed to comments about
their physical appearance;

•

Women were more likely than men to be exposed to jokes or comments
about race;

•

Women were more likely than men to be exposed to jokes or comments
about their own gender and the gender of other women attorneys; and

•

Women were more likely than men to be excluded from professional
conversations with other lawyers, judges, and court personnel.

Two years later, in 1997, the Joint Task Force issued its Second Interim
Report to present its findings from a statewide survey of trial court judges.
A copy of the Second Interim Report is attached in Appendix Vol. II. The
survey asked judges to render decisions in four typical case scenarios: selfdefense/homicide, personal injury, alimony, and simple assault.

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There were two survey versions, which varied only by the gender or the
race/ethnicity of the civil litigants or the criminal defendant and victim. The
factual information relevant to each of the cases was otherwise identical.
The two versions of the survey were distributed randomly to all trial judges
sitting in Pennsylvania. The judges were asked to render a decision, and
then, if appropriate, award damages or alimony, or enter a criminal
sentence.

338

Although the judges’ responses to the surveys were generally the same,
regardless of the litigants’ gender or race/ethnicity, as well as the judge’s
gender, there were some instances where there were statistically significant
differences. The differences in these responses were determined by the
social scientist to be related to the “non-legal factors,” i.e., the gender or
the race/ethnicity of the civil litigants or the criminal defendant and victim,
or the gender of the judge.
The survey revealed that, under the same factual circumstances:
•

Judges were more likely to find white female defendants claiming selfdefense guilty of homicide than African American female defendants,
under the same factual circumstances;

•

Judges awarded twice the amount of damages for assault when the
defendant was a male and the victim was a female, than when the
defendant was a female and the victim was a male;

•

Judges imposed longer sentences on white female defendants than African
American defendants; and

•

Judges awarded higher damages to female victims of male assailants than
male victims of female assailants.

Another important component of the Joint Task Force’s Second Interim
report was the role played by the gender of the judge. Insufficient data
prevented an analysis of the responses by race/ethnicity of the responding
judges. The survey results showed that, under the same factual
circumstances:
•

Female judges were more likely than male judges to find the male
defendant guilty of assault than the female defendant;

•

Male judges were half as likely as female judges to find the female
defendant claiming self-defense guilty of homicide; and

•

Male judges imposed shorter sentences for simple assault than female
judges.

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ALLEGHENY COUNTY BAR ASSOCIATION WOMEN IN
THE LAW COMMITTEE
In 1991, the Allegheny County Bar Association (ACBA) published the
results of its attorney survey, which was designed to determine whether
gender bias existed in the Allegheny County courts and, if so, in what ways
it might differentially affect the career tracks of male and female attorneys.
The survey was sent to the entire ACBA membership; 29 percent of those
responding were women, which accurately reflected the percentage of
women practicing law in Allegheny County in 1990.
The survey results indicated that the average annual salary range for males
practicing law was $60,000–$79,900, while the average annual salary range
for females was $35,00–$45,900. Years of practice, area of practice, number
of hours worked as a lawyer, number of children under eight years old, and
marital status did not explain the differences in the income of male and
female lawyers. A significant percentage of women believed they earned less
than males with comparable education and levels of responsibility, with
almost 20 percent believing that gender was a factor in their decreased
earnings. While the same percentage of licensed female and male attorneys
were engaged in the practice of law, a larger percentage of the women were
working only part-time. Even when the information was analyzed by number
of years of experience, the survey results also indicated that, on a percentage
basis, far more men than women were receiving fee-generating appointments
from the courts. It also appeared that women were promoted in
proportionally far fewer numbers than their male colleagues.
The ACBA survey also looked at social factors affecting attorneys’ careers,
such as identifying within an attorney’s household who predominantly
performs household chores, and who would be expected to relocate should the
attorney’s spouse receive an out-of-town job offer, to discover the impact, if
any, these factors could have on employment practices. The Committee
discovered that females continue to be responsible for the bulk of their
families’ childcare and household duties, such that if an emergency arises at
home, it is far more likely that the female, rather than the working husband,
will leave her job to attend to the problem. Twenty percent of the female
respondents indicated they had made long-term career accommodations in
order to care for their children, while only 6 percent of the male respondents
reported similar shifts.

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Lastly, the survey asked men and women about their perceptions of
gender bias, as evidenced by such behaviors as commenting on women’s
appearance, addressing women by their first names, and other similar
indicators of bias. As is the case with all other survey results referred to in
this chapter, women reported being the recipients of these forms of biased
conduct far more often than did men.

FINDINGS

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UNDERREPRESENTATION OF WOMEN THROUGHOUT
THE JUDICIAL SYSTEM
The number of women in the legal profession has been steadily increasing
since the 1970’s. ABA data on law school graduates show that, over the
past 11 years, women have accounted for between 43 percent and
47 percent of law school graduates.145 Many believe, however, that women
still disproportionately occupy the lowest echelons of the legal system.
They report that they are the secretaries but not the managers; the law
associates but not the partners; the junior-level judges but not the upper
echelon administrators.
Women’s relative disadvantage in hiring and promotions is reflected in
gender-related policies that affect support staff throughout the justice
system. Philadelphia court employees report, for example, that the “crier”
jobs are virtually all male while the clerical staff is predominantly female.146
In Cumberland County, where there are no female judges,147 a female
public defender noted, “Sometimes I can look around the whole courtroom
and can see that everybody in the courtroom who’s running the courtroom
is female except the judge. And the judge is always male and—the
stenographer, the court clerk…they are all…like little minions, and
there’s…the judge, he’s running the whole thing. And all these women in
service to this guy. That’s the way it looks to me sometimes.”148

At the local level, however, only 20 percent of
Pennsylvania judges were female. When Philadelphia
County and its 39 female judges (42 percent) were
excluded, the percentage of female judges dropped to
14 percent in the remainder of the Commonwealth…
in 41 of the 67 Pennsylvania counties, there were none
at all.
—Pennsylvania Bar Association Commission on
Women in the Profession

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While progress has been made, the perception of a male-dominated
judiciary is borne out by the most recent breakdown by gender of
Pennsylvania judges. As of 2002, women held one of seven seats on the
Supreme Court, five of 15 seats on Superior Court and five of nine seats
on Commonwealth Court.149 At the local level, however, only 20 percent
of Pennsylvania judges were female. When Philadelphia County and its
39 female judges (42 percent) were excluded, the percentage of female
judges dropped to 14 percent in the remainder of the Commonwealth.
Philadelphia was the only county with more than eight female judges,
and in 41 of the 67 Pennsylvania counties, there were none at all.150 Female
judges also tend to be clustered. In certain jurisdictions, judges believe there
is a tendency to assign female judges to family court rather than criminal or
civil court.151
Many female attorneys believe that, as they grow older, their careers often
lose momentum at the same time that male attorneys’ careers are thriving
and advancing. The PBA, in a 2002 survey of the Commonwealth’s
100 largest law firms, found that 32 percent of the attorneys in those firms
were women. Among those women, 47 percent were associates, 17 percent
department heads, 16 percent partners, and 8 percent managing partners.
However, women were “an overwhelming majority” of the part-time
employees in those firms.152 Salary studies within Pennsylvania from both
1991 and 1995 indicated that female attorneys were earning significantly
lower pay than male attorneys, even after taking into account age,
experience, and hours-worked differentials.153
Anecdotal evidence gathered by the Committee reflects and reinforces the
impression that the glass ceiling is firmly in place for female attorneys in
Pennsylvania. The anecdotes also demonstrate the effect these restraints
have had upon career directions for female attorneys. “The numbers every
year, they don’t change,” a member of the PBA Report Card Committee
said at the Philadelphia focus group for attorneys. “The women, they’re
just leaving,” two to five years after law school. “They’re staying at home
and raising their children,” she said. “They’re going into just completely
different professions…they’re all just jumping [ship].”154
A recent study, Women in Law: Making the Case, conducted by Catalyst,
and sponsored by Columbia Law School, Harvard Law School, University
of California-Berkeley Law School, University of Michigan Law School,
and Yale Law School, produced findings somewhat contradictory to the

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statements by the preceding attorneys. The study found that while the
career paths of men and women lawyers diverge over time, and fewer
women than men remain employed in law firms, many of those female
attorneys do not leave the profession entirely but simply relocate to the
education and corporate sectors.155

342

Many women see the specter of gender behind the lower pay and slower
rate of promotion. A Philadelphia attorney shared her experience at a focus
group. “I was at a smaller firm and I got paid less than the male attorney
who had five years less experience…They said, you’re female and generally
females make less. I said, ‘Wait a minute…he just got his license.’ I was out
[of law school] maybe five, six years. I said, ‘He’s coming to me for help.’”
The response, she said, was “Well, we expect him to be a rainmaker.”156

DISPARATE STANDARDS AND BIASES DIRECTED
TOWARD WOMEN
Many women find they are regarded as junior partners and denied the
respect and authority received by male attorneys. In their eyes, gender
makes women less than equal to their male counterparts.
Susan Yohe, referenced previously, began her public hearing testimony in
Pittsburgh by saying, “I do not come today with stories of blatant
mistreatment of women in the courts…It has been years since I was asked
by a court employee, as I was routinely throughout my first 10 years in
practice, despite my suit and briefcase and the company I kept, ‘Are you
a lawyer?’”
She continued, “It is no longer an obvious leap in logic to anyone that if it
is a woman, it must be a secretary or paralegal or other support person.”157
She concluded her remarks by noting, “Good people discriminate without
even knowing it, without recognizing it…A man who believes his female
colleague is just a little too emotional or aggressive or meek, too masculine
or too feminine or more committed to her family than to her career…He
would not admit to prejudice, but would say he is only making an objective
evaluation of her job skills. When he does this, he is…subjecting the
woman…to a level of scrutiny not common to all lawyers.”158 Many people
expressed a similar sentiment to the Committee, cautioning that although
women have come a long way, they still have a long way to go.

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The “old boys’ network” excludes women, denying them full and
equal participation in the system.
Women have joined the team, yet they generally do not see themselves
as full and equal partners—and the team itself has yet to offer them full
membership. One common complaint is that many men claim commitment
to equality, yet question whether gender bias actually exists. Caren Bloom,
a Centre County attorney, has heard criticism of the Women’s Bar
Committee in Centre County by male attorneys who called it reverse
discrimination because there is no men’s bar committee.159 Male members
of the Erie County Bar made a similar complaint because female attorneys
were holding formal women-only lunches a few times per year.160
The irony of these male perceptions is not lost upon their female colleagues,
who have long noted the “old boys’ network” maintaining its grip in
judicial circles as it resists the inclusion of women. In 1997, the Third
Circuit Court of Appeals Task Force on Racial and Gender Fairness
reported that, “The notion that an ‘old boys’ club’ operated among longpracticing male attorneys and male judges, to the detriment…of women
attorneys…was voiced frequently in attorneys’ comments to the survey and
at the public hearings. A female attorney commented: “The old boys’ club
is alive and well…Women and minority judges and attorneys just aren’t
included, and they are expected to be inferior in some respects.”161
At a Philadelphia focus group, a female attorney described an incident that
exemplified the problem. Her law firm scheduled a weekend golf outing at
Myrtle Beach for partners—who were all male—and clients. The women
in the firm also played golf and had represented several of these clients,
yet the women were pointedly not invited, even after the guest list was
expanded to include several of the firm’s associates. The women raised the
issue of their exclusion with their male colleagues, whose reactions ranged
from puzzlement to sympathy. The excursion went on as planned, without
the female associates. The following year, a memo circulated that invited all
associates, male and female, to attend the outing. The women signed up.
But the excursion was canceled, and has never again occurred.162
An attorney from a more rural county told a Harrisburg focus group about
an incident in which a local legal organization (the Inns of Court) issued a
membership invitation to the two full-time male attorneys in her office, but
ignored the two full-time female attorneys.163

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It would be a mistake to minimize the effect of this type of exclusionary
conduct. Women believe it affects their ability to retain clients. The woman
excluded from the Inns of Court believed it was important to be able to,
“convince your clients…that you have access to the court system and you
have access to the judges.” Another attorney at the same Harrisburg focus
group said that, when a client sees an attorney, “chumming up with the
judge or the D.A., they’re thinking, ‘Wow, this person is wellconnected—I’m OK.’”164

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Disparate treatment of male and female attorneys may cause a woman to
question her ability to work effectively on a tilted playing field. “We do not
understand why the judge seems to have a short fuse when it is a woman
arguing her case,”165 Susan Yohe said at the public hearing in Pittsburgh.
Similarly, an Erie County attorney told her focus group about, “the
hostility and the discrimination and the being treated differently.” Male
attorneys, she said, were able to give motions without the proper notice
while women in the same courtroom were, “forced to go through every
hoop and every word in the rule.”166

“We long for the easy camaraderie with judges and
court personnel enjoyed by men…because it…means a
more ready acceptance, a more open ear to a novel or
difficult position, a more forgiving attitude toward a
mistake—things all litigators need from time to time.”
—Attorney Susan Yohe

In her role as an officer of a local chapter of the National Organization of
Women, Joanne Tosti-Vasey has received complaints from female attorneys
in central Pennsylvania about their treatment in the local courthouses. One
of the concerns she has heard on a number of occasions is the sense that
female attorneys have that they are not privy to the friendly discussions and
relationships shared by judges and male attorneys. Their concern is that those
relationships can have an important bearing on a case and they have no access
to them: “The discussions with the male attorneys are different than with
the female attorneys. For example, the judicial official might discuss the
Penn State football game for 15 or 20 minutes with a male attorney. The
discussions with a female attorney would more likely deal with a court case
and/or are very short in nature. This type of informal conversation gives the
perception that the female attorney is not the judicial officer’s pal.” TostiVasey went on, “Clients with female attorneys have said, ‘If my attorney was
his…pal or buddy, then I would have fared better.’ This is an appearance of
bias issue, even if there is no actual biased behavior.”167

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Many women also believe their male counterparts are more likely to receive
support and concrete advice from senior attorneys. As attorney Shelley
Pagac noted at the Pittsburgh public hearing: “Older male attorneys in law
firms often focus their mentoring efforts on young male associates, and
exclude young female associates from certain opportunities within the firm.
This type of conduct may be unintentional, but can have a profound effect
on the professional development of women attorneys.”168
Exclusion from the network also affects women’s ability to represent their
clients in the most effective manner. A Harrisburg public defender put it
succinctly: “A lot of Dauphin County D.A.’s are old school members, and
if you’re not in their little clique, you are not going to get as good a deal as
the older men that are in that little clique.”169 Yohe noted at the Pittsburgh
hearing, “We long for the easy camaraderie with judges and court
personnel enjoyed by men…because it…means a more ready acceptance,
a more open ear to a novel or difficult position, a more forgiving attitude
toward a mistake—things all litigators need from time to time.”170

Women perceive that they are accorded less credibility because of
their gender.
Because of their overwhelming presence in the justice system, men
established the standards and norms of behavior expected within the
system. As women enter the system, many find that its standards favor and
reinforce typical male behavior patterns. Thus, some women believe that
they are discriminated against simply because they are not men.
When the court addresses women as “Mister” or initiates a court session
with, “Good Afternoon, Gentlemen”—a frequent point of contention
in Pennsylvania—the clear meaning is that men expect to see other
men serving as attorneys and judges. The assumption, consciously or
unconsciously, translates into an inappropriate form of address. After
all, said one female attorney who was consistently addressed as “Mister”
by a particular judge, “I know darn well I look like a female.”171
Other women believe the courts discriminate against women who do not
speak, sound, or react emotionally in the same manner as men. The women
believe, for example, that judges sometimes look with disfavor upon female
litigants who cry on the witness stand. “There are times when the judges
are very what we would call abusive with a crying female witness,”
attorney Caren Bloom said at the State College public hearing, calling the
judges, “sometimes abusive and impatient at the woman crying on the
stand and being emotional about her life falling apart.”172

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Women’s speech patterns, inflections, tones of voice, and use of language may
also be called into question. An attorney at the Philadelphia focus group
related a discussion with a male colleague who thought he was praising her
legal skills when he said, “You’ve mastered the fine art of being a persuasive
advocate without whining…I’m telling my female associates all the time,
‘Stop whining.’”173 The man, in effect, was implicitly criticizing anyone who
sounded like a woman, which was the wrong way to sound. He sounded
like a man, which in his mind was the right way to sound.

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A similar bias spills over into expressions of moral values that influence
professional behavior. If a woman does not prioritize her work and family
life according to male expectations, she risks violating expected norms of
behavior. A witness at the State College public hearing testified to receiving
several reports from female attorneys in the area who complained of being
denied continuances for family and childcare emergencies, while men were
granted continuances for trifling reasons.174 A Philadelphia attorney told a
focus group about an occasion when, with an important trial looming, she
took three days’ bereavement leave because of her mother-in-law’s death.
When the attorney subsequently won the trial, a male attorney in the office
told her, “You really shouldn’t be a partner at a law firm. You should go inhouse, because you love your husband too much…”175

Women are perceived to be less competent than men.
Women continue to believe that perceptions of their competency are distorted
and that their professional credibility is hard won. “We have a tougher battle
convincing the court that we really are as good as we are,” Yohe said at the
Pittsburgh public hearing. “We come into a courtroom having to prove
ourselves, to overcome an assumption that we are not quite first-rate, but
still learning, still needing to be patronized. We are treated as new in the
profession, still wet behind the ears, still young, even after we have acquired
years of experience and gray hairs. We are forever girls.”176 For attorneys, this
can result in greater, stricter scrutiny by the court, especially in rural areas
where fewer female attorneys practice. Civil litigators in Wilkes-Barre noted
that female trial attorneys are held to higher standards, as though the court
was wary of their abilities.177
The Third Circuit Task Force survey drew a similar conclusion, citing
the common impression that judges singled out female counsel and made
disparaging or demeaning remarks about their performance and
professional competence.178

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Clients can act in biased ways, too. As an attorney observed at the
Harrisburg focus group, “I always feel like I have to start out trying
to prove myself, that I know what I’m doing, and I’ll have them say to
me—before I have a chance to say anything—‘do you know what you’re
doing?’ Or, ‘How long have you been doing this?’ They call me ‘Hon.’ I’ve
been called ‘Kiddo’…They might say, ‘My husband now has so-and-so on
the other side. Do you think you can handle him?’”179
Some women also connect with competence issues the frequent
misidentifications of female attorneys as nonprofessionals. An attorney from
Wilkes-Barre noted that she was often mistaken for the court reporter when
she arrived at an office for a discovery deposition, although she carried no
reporting equipment.180 Similarly, a young female attorney in Erie related
that in domestic cases, “If I’m representing a male…they tend to think that I
am the paramour of the male. Even if the male is 65 years old.”181
In response to similar findings by the District of Columbia Task Force on
Gender and Racial Bias, The Honorable Patricia Wald of the D.C. Circuit
Court said, “No one infers conscious bias from [this data], but on the other
hand, how can one discount the effect non-recognition has on the woman
lawyer? Honest mistake, of course. Non-prejudicial error? I don’t think so.
It says to the misidentified player, you are not in friendly territory. This is
not your game, yet.”182

Women believe they must exhibit either aggressive or passive
behavior.
A unique problem arises from expectations that a woman will act or speak
in a certain way. However, these stereotypes about women do not always
jibe with expectations about the way a legal advocate or judge should act.
This often puts a female attorney in the paradoxical position of either
behaving in an outspoken manner and being perceived as too aggressive or
“bitchy,” or conforming to more passive behavior that will cause her to be
labeled as an ineffective advocate. Either way, a woman’s competence is
once again challenged.
An Erie attorney, who said she is generally unaware of any gender bias
directed toward her, nevertheless reflected that, “To the extent that things
have been unfavorable to me as a woman it is because I feel that I have to
work…twice as hard to get the same result as a man, because when I make
a good argument I’m seen as going crazy or ‘Isn’t she a bitch.’”183

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348

The dilemma is related to the issue of disparate treatment. Although
attorneys acknowledge the existence of civility codes that are applicable
to both genders, they assert that, “The men can say ‘I can be as aggressive
as…or I’m going to raise my voice. I’m going to bang my fist on the table.
I’m going to be loud and in the witness’s face,’” an attorney said at the
Philadelphia focus group. “But the women, if the women do that, you
have to worry about the judge reacting adversely to you.”184 Caren Bloom,
referenced previously, underlined a similar point at the State College public
hearing: “When a female lawyer is assertive, she is considered bitchy. And
when a male lawyer is assertive, he’s considered a good advocate…”185
At the Pittsburgh public hearing, Yohe worried about how the contradictory
expectations affected the judge’s reaction to her arguments: “We fear that
strong, powerful advocacy on behalf of our clients turns off judges and
juries. We constantly worry that we appear either not strong enough,
too much like a woman, or too strong, too much like a man. This is a
conversation we have with ourselves that I cannot imagine has a counterpart
among men. And if we are too aggressive, we risk making a judge or jury
angry at us.”186 An attorney at the Erie focus group, noting the progress
made in the area of gender parity, nevertheless testified, “Women are
historically, the stereotype has been, you’re not aggressive, you’re going
to be more passive…and those things feed into the judges’ perceptions.
So that when you are aggressive, they don’t know what to do.”187

Women’s spoken words are often discounted.
Attorneys have long reported that some judges actively interrupt and
discourage or derail a female attorney’s or female litigant’s presentation. The
Third Circuit Task Force, among others, found that courtroom interruptions
by judges were noted far more frequently by women than by men.188
“Judges interrupt female witnesses and litigants more often when they
are on the stand,” noted Joanne Tosti-Vasey at the State College public
hearing, “And female lawyers have reported that if they’re doing what
appears to be a very good interrogation, the judge will more likely interrupt
the flow and ask his own questions.”189
Another attorney said, “I actually had an experience last year where
I…made a particular kind of objection and the judge kind of dismissed
it out of hand. And literally came back about a half-hour later and
apologized.” She remembered the judge saying, ‘I went back and I thought
about what you said and you’re right…but…I just don’t think you’re being
heard.’”190

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Many women perceive certain types of behavior as inherently disrespectful.
Interruptions, for example, and the inability to “hear” a woman’s
argument are regarded as examples of conduct that is disrespectful and
discourteous towards women. Such conduct bespeaks a value system in
which women are not afforded the same respect as men, and a system in
which women are singled out and treated differently from men.

Women are subjected to sexual remarks and conduct.
Women often report being subjected to remarks and conduct that portray
them as sexual objects. An attorney in the Erie focus group related an
incident in which deputy sheriffs were at one end of a courthouse hallway
and a drinking fountain was at the other. Just as the woman approached
the fountain, the deputies called her to come down the hallway to where
they were standing. “So I walked down there. One of the men said, ‘I just
wanted you to come down here so I could watch you walk back.’ I was
horrified.”191
The speaker’s reaction is understandable. An attorney’s job is to prepare
and present her client’s case, to effectively and ably represent her client in
court. Being perceived as something other than an advocate can be both
distracting and humiliating.
The speaker also raised a concern about possible retaliatory action by the
sheriff’s office if she were to object to such offensive conduct. She stated,
“The next time someone flips out in court then that sheriff’s deputy is not
going to be standing between you and that person.”192 In addition to
complaints about sheriff’s office employees, participants in the Erie focus
group of female attorneys also complained of offensive conduct by district
justices. One attorney reported that she was invited by a district justice in
her community to, “come back to my office with the state police and we’ll
all tell dirty jokes and laugh.”193 Another attorney stated in reference to
district justices, “I think that’s one of the most rampant places for sexism
to rear its nasty long neck.”194

Women are addressed differently than their male colleagues.
Many women are perplexed by unnecessary and inappropriate comments
about their age and appearance. Every survey and task force report
reviewed contains reports of women at least occasionally being addressed
in a disrespectful manner. Some report the use of “Dear” or “Hon,” or
being called by their first names while their male counterparts are called
“Mister.”195

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Some women dismiss such words as benign, saying they should be
overlooked as long as the case has a satisfactory result in court. In this
light, one attorney at the Erie focus group spoke of a retired judge, “the
sweetest person in the universe. And every time I see him, I’m ‘honey.’ And
you know what? I don’t care…It doesn’t bother me from him because I
know from being in front of him, he doesn’t think I’m stupid because I’m
a female. He’s never treated me inappropriately in the courtroom…You
could not possibly get mad at this guy.”196

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Yet the words are often loaded with hostile inferences: “One judge, every
time we’d go into chambers, he’d stand up and go, ‘Hello, Mr._______,
hello Mr.______,’ every single time, for two years. And it drove me
completely out of my mind…he didn’t think I was someone’s paralegal.
He knew exactly…who I was. And nonetheless, he never referred to me
as Ms._________. He referred to me as [first name].”197 She also had to
contend with male colleagues who “thought it was hilarious. They all
noticed it.”198 She felt the judge had tacitly but effectively told the men that
they, unlike her, were worthy of respect. Respect, which implies equal
treatment with their male counterparts, is what women are seeking.
Female judges also reported problems in this area. One judge noted in an
interview that she has difficulty being “heard” in judges’ meetings, even
though she believes her peers generally respect her. The judge remembered
making suggestions in meetings that were ignored until a male colleague
made the same suggestions.199

Women are subjected to comments concerning their appearance
and age.
Women in the justice system hear remarks about their age and appearance
more frequently than do men.200 One Philadelphia attorney told her focus
group, “I know when I go before…men I have to dress in gray or have to
dress in blue and be very conservative. Whereas with a woman judge, and
this is in Philadelphia, too…I can put a dress on. I can feel a little bit more
comfortable.”201 Another Philadelphia attorney observed, “You have to
dress down,” explaining that she is expected to look masculine. “I don’t
want to say you really can’t be a woman, but you really have to almost fit
yourself into a mold so that they’ll accept you.”202

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In addition to feeling pressured to “dress down” and/or fit a mold, women
complain of being subjected to comments about other women’s physiques.
Women view such comments as examples of the same objectionable
behavior exemplified by subjecting women to sexual remarks. “Judges,
court personnel and attorneys…have been heard to make comments about
a woman’s size…Examples include, ‘She’s a tiny woman attorney.’ ‘She’s a
hunk of a woman.’ ‘She needs to lose weight.’ All of these statements
objectify the woman. They are all putdowns.”203
Women also question why their age, or the age of female litigants, seems to
be an issue while this subject rarely arises about men. “When women…take
the stand,” one judge said in an interview, “the question of how old you
are seems to be almost an automatic…and I would stop and say, ‘Well, if
we’re going to ask the women how old they are, then we need to know
how old the men are.’”204 Some attorneys noted that age and gender
intersect in a way that reaffirms the perception that a woman often is
mistaken for someone other than a lawyer or judge.205

Dismissive or discourteous conduct implies that women have less
value than men.
Some women believe that they must also contend with a bias that stems
from an attitude or belief system that devalues women on account of their
gender, granting them less dignity and respect than men. This form of bias
can be heard in a tone of voice, conveyed in an attitude, or reflected in an
act that appears benign on the surface, but can nevertheless call a woman’s
competence into question. Such conduct implies that men’s rights or
concerns are more valuable or important than women’s.
Speakers at public hearings and focus groups most often raised this issue
in the context of domestic violence cases. Several speakers noted that some
judges appear to give preferential treatment to the men charged with acts of
domestic violence.
According to testimony, a problem arises in central Pennsylvania during
hunting season, when some judges are reportedly loath to issue orders in
protection from abuse (PFA) cases that remove the defendants’ firearms,
despite having the authority to do so pursuant to the PFA Act.206 Additionally,
attorneys at a Philadelphia focus group charged that some judges go out of
their way to prevent the filing of PFA petitions against policemen. One lawyer
reported her client being told by a judge, “‘Don’t you want him to be able to

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work? You’re going to wreck his job. And so she should risk her life so he can
keep working.”207 In yet another example, a judge listened to a tape of a man’s
telephone threats to his wife, violating a PFA order. The judge laughed with
the defendant, told him he understood his Italian temper and joked with him
in Italian. The woman in the case was “shocked and confused” by this course
of events, the attorney related, and came to believe that a PFA was a
meaningless piece of paper.208

Women are sometimes subjected to hostile behavior.

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Male conduct sometimes goes beyond patronizing and becomes rude and
hostile. Female judges interviewed by The Melior Group and V. Kramer
& Associates related incidents in which male attorneys tried to take over
the courtroom and challenge the judge in ways they would have never
challenged a male judge. One female judge reported conduct that bordered
upon physical intimidation.209 “Some attorneys think they can come in and
say whatever they want…if it’s a female judge,” a Philadelphia court
employee told the focus group. “An attorney will come in and talk to
a female judge as if she’s nothing.”210
A female attorney in the Erie focus group reported an incident in which
opposing counsel’s client “literally came across the table” at her. When
she insisted that opposing counsel rein in his client, he responded in a
dismissive manner that she was overreacting because she was a “girl.”211
Various people also described incidents in which judges exhibited rude
conduct toward female attorneys: “My judge told a female public
defender…to shut up and sit down,” said a Philadelphia court employee,
“and in an open courtroom.”212 The employee added, “He [the judge] gets
agitated…but in my entire time with him I never saw him address a male
attorney in that fashion—ever. It was always the females. And this one
in particular—he really chewed her out in a very disrespectful way.”213
Another court employee described a criminal court judge who appeared to
discriminate between male and female attorneys in his courtroom. For the
three months the employee was assigned to the judge’s courtroom, “Half of
that time he had a female D.A. and a male P.D., and in that situation the
P.D. won most of his cases…Then when it went to a female P.D. and a male
D.A., now the D.A. is winning all the cases.”214 According to the employee,
“This is unbelievable because it was so blatant. He was a judge that looked
at situations like, regardless of what side you were on, [if] you were female,
you don’t belong there.”215

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Perceptions that there are few viable remedies to redress genderbiased conduct.
When faced with gender-biased conduct, many women find themselves
at a loss. They believe there are few viable remedies currently available.216
Worse, even if satisfactory remedies did exist, the women say they would be
reluctant to pursue them.
Some lawyers described their informal, spur-of-the moment responses to
instances of gender bias. One attorney said that when a man interrupted
her argument, she would raise her voice and shout him down—exactly as
he would do if she tried to interrupt him.217 Another attorney advocated
speaking directly to the judge, but in a non-confrontational manner. Her
approach is to ask, “Is it something I did, something I said?”218 Far more
people speaking at hearings, interviews, and focus groups said they would
do nothing at all in response to expressions of gender bias.

“You’re afraid to complain because it’s going to hurt
you professionally.”
—Philadelphia Attorney

The ACBA has a formal, confidential procedure to report instances of
gender bias, yet the procedure is rarely used. “I think women are very, very
reluctant to ever bring such a thing to the committee,” said Susan Yohe,
former chair of the committee. “Perhaps they think it’s no use. More likely,
they think they have to go along. They can’t compromise their ability by
complaining about a judge. The fear is very well-founded.”219 At focus
group sessions in Erie, the attorneys said they would welcome a formal
procedure, “because it’s a recognition of the problem.”220 Yet the same
attorneys said they would not use the procedure, because it would hurt
them in both the long and short run.221
This reluctance to initiate a formal complaint was expressed throughout
the Commonwealth: “If you say something, the only thing that would
change would probably be you…you won’t have a job. Or you might be
put somewhere else,” a Philadelphia court employee told a focus group. 222
Attorneys expressed the same belief. “If you file a complaint with the
disciplinary board, you know, all these judges talk, they’re all friends,
you’re going to get screwed later on when you go back in a courtroom,”
a Philadelphia attorney said. “You’re afraid to complain because it’s going
to hurt you professionally.”223

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Others were concerned that filing a complaint would jeopardize their
ability to represent their clients. One attorney at the Harrisburg focus
group told about a sheriff who made comments about her appearance
and repeatedly tried to touch her. “I wish I had the guts to say, ‘Keep your
stinking hands off me, stay away from me, don’t even look at me,’”224 she
said. “But I can’t do that.” Another lawyer in Harrisburg chimed in with
the rationale: “We know that if ______ stood up to the sheriff, that she’d be
waiting for her clients to come over from the prison until five o’clock every
day…she’d have to go pick them up herself.” 225 An Erie attorney summed
up the fear: “You can hurt your client. I think that’s why each of us will
decide to bite our tongue rather than make an overt issue. Because my job
is to do the best I can do for my client.”226

OTHER TASK FORCE FINDINGS
Federal circuit courts and many state court systems in the past 20 years
have commissioned studies concerning gender bias within their judicial
systems. Lynn Hecht Schafran, director of the National Judicial Education
Program of the NOW Legal Defense and Education Fund, reviewed the
first nine of those task force reports in the early 1990s in her article
entitled, Overwhelming Evidence: Reports on Gender Bias in the Courts.227
Based upon her review, she concluded that, “Although the severity of the
problems documented varies in certain instances from state to state, there
is an overall uniformity. In the words of the New York Task Force on
Women in the Courts, ‘Gender bias against women litigants, lawyers and
court employees is a pervasive problem with grave consequences. Women
are often denied equal justice, equal treatment and equal opportunity.’”228
Since that comparative study, over 30 subsequently published reports have
found similar problems and have made similar recommendations. Findings
from a sampling of reports selected for their similarity to this Committee’s
conclusions follows.

STATE TASK FORCES
Washington
In 1989, the Washington State Task Force on Gender and Justice in the
Courts issued its final report, Gender and Justice in the Courts. Based upon
a statewide survey of attorneys, court employees and judges, it determined
that 74 percent of all male and female attorneys, and corresponding
numbers of judges, perceived gender bias on some level directed towards
female lawyers, litigants, and witnesses, with 54 percent of all responding

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attorneys and corresponding numbers of judges perceiving gender bias
directed towards judges.229 Examples of gender-biased conduct included
inappropriate uses of first names, terms of endearment, and compliments
regarding their physical appearance directed toward female attorneys,
witnesses, and litigants. The task force found that female attorneys were
asked by opposing counsel if they were lawyers more often than were
male attorneys, and that male lawyers and judges regarded female litigants
as less credible than male litigants. The task force also found that
approximately one-third of all respondents believed female witnesses
and litigants were treated condescendingly or disrespectfully in comparison
with men.230 The gender bias directed toward female judges consisted
primarily of their being addressed by first names, or being asked to
disqualify themselves from a case because of their gender. In addition,
most respondents indicated they would not file formal complaints of biased
conduct that was directed toward them, even though half of all female
lawyers and female judges who had observed such conduct believed it
adversely affected case results.231 The task force concluded, “The manner
in which attorneys are treated and perceived by judges, other attorneys
and court personnel has a critical impact on their status in court, their
credibility and effectiveness as advocates. Behavior demeaning or
discreditable in nature distracts attention from the merits of a particular
case.”232 Similarly, the task force found that, “If treated condescendingly
like children, litigants stand less of a chance of prevailing on the merits of
their cases. If treated disrespectfully, at the very least their confidence in the
integrity and impartiality of the judicial process is diminished.”233

Michigan
The Michigan Supreme Court Task Force on Gender Issues in the Courts
also issued its Final Report in 1989. The Court formed the task force to
address gender bias issues after the Citizen’s Commission to Improve
Michigan Courts found more than 33 percent of Michigan citizens agreeing
that the court system discriminated against individuals on the basis of
gender, race, or ethnic origin. The task force defined gender bias as:
“the tendency to think about and behave toward others primarily
on the basis of their sex. It is reflected in attitudes and behavior
toward women and men, which are based on stereotypical
beliefs about the “true nature,” “proper role” and other
“attributes” of the gender.”234

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The task force concluded that the perceptions of gender-biased conduct in
the judicial system were rooted in reality. As examples of biased conduct,
the report cited discourteous, disrespectful, and patronizing language;
tolerance of assertive conduct by men that is condemned in women;
inequitable assignment of women to court-appointed, fee-generating
positions; and relative disregard for the credibility of women’s speech,
arguments, and testimony. The task force found that such actions and
attitudes generally undermined women’s credibility, and served to isolate
female litigants, witnesses, judges, attorneys, and court employees.

356
Massachusetts
The Gender Bias Study of the Court Systems in Massachusetts was
published in 1989, drawing upon surveys of attorneys, judges, and juries;
public hearing testimony; responses to questionnaires; reviews of court
records and documents; and other personal and written observations
submitted to the task force. The study concluded that gender-biased
conduct existed throughout the Massachusetts judicial system. The
predominant types of gender-biased conduct included: addressing women
inappropriately; chiding women for aggressive or “bitchy” behavior;
treating women as less competent than men; commenting on women’s
clothes and appearance; subjecting women to inappropriate, sexually
suggestive remarks; and exhibiting hostile, patronizing, insulting, or
disrespectful attitudes toward women. The task force found that female
attorneys were subjected to forms of biased conduct that included being
appointed to fewer fee-generating positions than men; being stopped from
speaking in court; and being subjected to questions about whether they
were attorneys in given cases. Most judges who observed such treatment
of female attorneys believed it damaged the case by drawing attention away
from the issues; placed counsel in a position of inequality, interfering with
female counsel’s representation; delayed the trial; or demeaned the
professional atmosphere of the court.235 The Massachusetts study also
addressed the courtroom treatment of female litigants and witnesses,
concluding that they were treated with less respect than men, were often
patronized, and were sometimes subjected to unwarranted touching and
suggestive and inappropriate comments about their appearance. Forty
percent of the judges in the survey agreed that such behavior interfered
with the testimony or was otherwise detrimental to the witness.236 Nearly
all judges believed judicial intervention was an appropriate response to
gender-biased conduct, yet only 4 percent of attorneys in the survey had
seen a judge intervene.237

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Colorado
The Colorado Supreme Court Task Force on Gender Bias in the Courts
issued its Final Report in 1990, which set out to address whether “gender
bias exists in the judicial system in Colorado, and, if such gender bias exists,
to determine the nature and extent of such bias.”238 Task force members
visited courtrooms, held public hearings and listening sessions, conducted
surveys and interviews, and reviewed court documents. According to a
survey, nearly half of the female attorneys and judges agreed that bias against
women in the legal system was widespread but subtle, while fewer than
10 percent of their male counterparts concurred.239 Men and women had
markedly differing opinions on all aspects of gender bias issues, with women
reporting far more biased conduct of all types. On the question of whether
judges adequately control such conduct when it occurs, “yes” was the
answer from 41 percent of male attorneys, 20 percent of female attorneys
and 66 percent of judges.240

California
Achieving Equal Justice for Women and Men in the California Courts:
Final Report was issued in 1996. Citing virtually all forms of biased conduct
reported by earlier state task forces, the advisory committee found widespread
gender bias throughout the California court system. The report focused upon
the need for court employees, including judges, to follow uniform genderneutral court policies concerning hiring, training, promotions, and family
leaves as a means of eradicating gender bias within the judicial system. The
committee also cited the need for affordable, accessible childcare for witnesses
and litigants in order to minimize unnecessary delays and disruptions in
courtroom proceedings. Judges and attorneys appeared to view such
interruptions as evidence that a female litigant was shirking her legal
responsibilities, which tends to undermine her credibility. The committee also
noted the belief of female attorneys that they have fewer opportunities for
advancement than men, which relates to the profession’s failure to recognize
the demands of balancing home and professional life. The report discusses
gender-biased courtroom conduct by attorneys and court employees, but
focuses primarily on judges because they are responsible for controlling the
courtroom.

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Oregon

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The Oregon Supreme Court/Oregon State Bar Task Force on Gender Fairness
took just over two years to study, “whether and, if so, how gender affects the
experiences of Oregonians in the state court system and the legal
profession.”241 While it found that gender fairness has improved significantly
in the last 10 to 25 years, and that gender fairness exists in most aspects of
Oregon’s justice system and legal profession, it also found that there are
still areas of “gender unfairness and perceived gender unfairness.”242 For
example, the task force concluded that female lawyers, particularly young
female lawyers, are routinely treated with less respect than their male
counterparts, and on the average earn less than their male peers, charge less
for their time, and generally practice in areas that are known to offer low
compensation. It further noted that some judges seem to disproportionately
favor men in custody and support proceedings, and that women are often
put at both short- and long-term financial disadvantage by spousal support
and property division orders put in place by the court in marital dissolutions.
With respect to women in the criminal justice system, the task force found
that “females housed in adult and youth state correctional facilities do not
have access to the same job training, work, and general support programs
and services as do male inmates and juvenile detainees.”243 In particular, two
general findings of the Oregon task force seem to apply to all states. First,
Oregon made a significant effort to show that negative experiences can be,
“based on more than gender alone” and, “may be compounded by race, age,
sexual orientation, poverty, or other factors.”244 Second, the Oregon task
force found that because most remaining gender bias appears to be, “neither
malicious nor egregious,” it may be more difficult to identify and address
than “more glaring problems.”245

Virginia
The Virginia Task Force issued its report, Gender Bias in the Courts of the
Commonwealth, in 2000, incorporating findings from surveys, focus groups,
public hearings, court observations, statistical information, and other records.
The task force concluded that, while gender bias still existed in Virginia, it was
subtler than the bias discussed in other state reports. According to the report,
more women than men perceived bias against women, and female attorneys,
judges, and magistrates observed gender-biased behavior more often than their
male counterparts. The report also found that, among persons perceiving bias,
most said it was not widespread; and most believed bias had decreased in the
previous five years. Also, attorneys generally believed judges did not intervene
to correct gender-biased incidents, while judges believed they did intervene. The

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task force found gender bias and the perception of gender bias undermining
the integrity of the judicial system, and concluded that perceptions of bias are
as important as the realities of bias. The report recommended that the judiciary
utilize all appropriate measures to “replace bias with informed and educated
impartiality.”246

FEDERAL TASK FORCES
Ninth Circuit
The Final Report of the Ninth Circuit Gender Bias Task Force was issued in
1993. At the outset, the task force noted that, “The courts aspire to a
world in which interactions are gender neutral. One of the task force’s
charges was thus to ask: How well has this aspiration been met in the
Ninth Circuit?”247 The task force relied on focus group interviews, surveys
of judges and lawyers, and information from advisory committees to
examine instances and perceptions of gender bias directed toward female
attorneys, judges, litigants, and witnesses. The task force noted that female
attorneys were offended by the use of their first names and by comments
about their physical appearance or dress that called special attention to
their gender. Female attorneys, and female judges to a lesser degree,
reported hearing disparaging or demeaning remarks about their
competence or performance, such as judges’ labeling their conduct as
“hysterical” and generally holding women to stricter standards than
their male colleagues. Female attorneys also cited their exclusion from the
“old boys’ network,” characterized by social and professional events that
exclude female attorneys. Female attorneys, and female judges to a lesser
degree, reported that aggressive women were labeled as “bitches” and had
their sexual orientation called into question, and many women believed
that filing a complaint would have an untoward effect on their clients and
cases. Female attorneys and judges also reported that female witnesses and
litigants were addressed more familiarly than males, and were singled out
by both judges and attorneys for demeaning treatment; female witnesses
and litigants made similar observations in focus groups. The task force also
analyzed its data by age classifications and, without exception, found the
same differences in perceptions between men and women under 40 and
men and women over 40.

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Third Circuit

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The Report of the Third Circuit Task Force on Equal Treatment in the
Courts was issued in 1997, based primarily upon questionnaires directed to
attorneys, court employees, and judges; focus groups sessions; and testimony
at public hearings. While most respondents did not believe that gender bias
was extensive in the court system, significantly more women than men
believed it was. The gap between women’s and men’s perceptions was a
major theme in the report. The task force recommended that courts in the
Third Circuit take remedial action to address and eliminate incidents of bias
as well as perceptions of bias. Relevant citations from the Third Circuit’s
study are set forth throughout this chapter.

Eighth Circuit
The Final Report of the Eighth Circuit Gender Fairness Task Force was also
published in 1997. The task force commissioned surveys for all judges, all
court employees, and a large portion of attorneys who practiced within the
Eighth Circuit, but specifically limited its questions to instances and
perceptions of biased conduct within the context of litigation. The task
force also conducted focus groups and collected data directly from the
courts. The task force found that “incivil” behavior existed toward men
and women throughout the Eighth Circuit, but determined gender bias was
responsible for many of the differences in behavior variously described by
men and women. “If participants in the legal process find that they are
treated inhospitably within the courts,” the task force concluded, “they
may believe that the positions they advocate are not being given a fair
hearing; and, this incivility may represent evidence that such beliefs are
indeed based in fact. Further, to the extent that incivility causes participants
in the process to feel unwelcome and thus to withdraw from participation,
the system will lose their contribution to the promotion of justice.”248 The
most frequently reported difference in the experiences of male and female
attorneys with regard to incivility was the extent to which women said they
were excluded from professional camaraderie in the course of federal
litigation. More than 33 percent of the women respondents felt excluded,
but only 10 percent of the men.249
The report also cited forms of gender-biased conduct such as
unprofessional forms of address, offensive comments about appearance,
offensive jokes and comments, and mistaken identification. Women
encountering such conduct reported increased job stress, decreased job
satisfaction, and a desire to limit their involvement in federal litigation.

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Many women indicated, however, that, “They thought it would be useless
or unwise to complain.”250 With regard to court employees, the task force
found that women filled almost 75 percent of the Eighth Circuit staff
positions, but only 33 percent of the management positions.251 More
women than men experienced “incivil” behavior in the courts, especially
in the area of unwanted sexual attention, and those women were also more
likely than men to believe that making a formal complaint was risky or
useless.

Second Circuit
The Report of the Second Circuit Task Force on Gender, Racial and Ethnic
Fairness in the Courts was also issued in 1997. Based upon circuit-wide
surveys and reports from judges, attorneys, and court employees, the task
force described gender-based conduct that included ignoring, interrupting,
or not listening to female attorneys and litigants; helping or coaching
females in a patronizing way; mistaking the attorneys for non-lawyers and
otherwise challenging their competence; and subjecting female witnesses
and litigants to derogatory remarks related to gender and sex. The task
force found that male judges and lawyers most often precipitated such
conduct. The task force also concluded that women were more likely than
men to perceive gender as a disadvantage. Among those lawyers reporting
such a belief, most also cited the judge’s attitude as the source of the
disadvantage.

CONCLUSION
The women who spoke in public hearings, interviews, and focus groups
believe strongly in the Pennsylvania judicial system. One praised the
Supreme Court of Pennsylvania for commissioning a study on gender bias,
saying the Court’s “willingness to put this topic on the table is a powerful
message to all judges, lawyers and court personnel in the state. Sometimes
just asking the question, being willing to take a concern seriously, begins a
process of change.”252 Many others registered the belief that the system
continues to evolve in a healthy and equitable direction. They acknowledge
that many judges are fair and even-handed in their treatment of all who
come before them, regardless of gender.

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One [woman] praised the Supreme Court of
Pennsylvania for commissioning a study on gender
bias, saying the Court’s “willingness to put this topic
on the table is a powerful message to all judges,
lawyers and court personnel in the state. Sometimes
just asking the question, being willing to take a concern
seriously, begins a process of change.”

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The appearance of gender bias may be waning because the number of
women has increased in most corners of the legal system, including the
bench. Many female attorneys believe that female judges treat them with
more respect, courtesy, and understanding than they typically receive from
male judges, (although a smaller group of attorneys said female judges
favor men).253 A minority female attorney from Harrisburg referred to an
incident where a sheriff in a female judge’s courtroom continually referred
to the attorney as “girl,” which she found offensive. That same sheriff then
tried to reprimand the attorney for whispering to her client while court
was in session, although other male attorneys were engaged in the same
conduct. When the sheriff motioned for the attorney to leave the courtroom
with him, “The judge walked up behind me [the attorney] and tapped me
on the shoulder and [said]…‘I need to speak with you now, around this side
of the corner.’ I’m dying. I think she’s going to reprimand me. But then the
judge said, ‘you need to forgive him because he’s old, he’s set in his ways,
sometimes he even refers to me as ‘girl’…I didn’t believe her,” continued
the attorney. “I don’t believe that man has ever called her ‘girl,’ but she
was doing it to try and make me feel better.”254
The incidents of bias may be diminishing as more daughters, sisters, and
wives enter the workforce alongside their male relatives, gently prodding
them into revising their expectations and attitudes concerning their female
colleagues. “A lot of male judges now,” a Philadelphia attorney reported,
“have daughters who are in law school and they say to themselves, ‘I don’t
want my daughters being treated this way.’ I know it’s happened to me with
partners. I brought a situation to their attention and while they may not have
thought that what they did was wrong initially, I asked, ‘What if I was your
daughter and this had been going on in her workplace? How would you
feel?’ And then they all kind of take a step back and say, ‘You know, she’s
right.’”255

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THE COURTROOM

Gender bias can result in women’s discouraging others from entering the
profession. For example, almost all of the female participants of the attorney
focus group session in Erie emphatically stated that they did not want their
daughters to become attorneys because of the lingering problems with gender
bias and the special difficulties it imposes on female attorneys.256
Whatever gains there are, however, may make it more difficult to pinpoint
and examine the remaining gender-biased conduct. If, as some women
argue, gender bias is not what it used to be, then why bother listening to
new complaints? Perhaps, in the situation described previously, it was
merely a coincidence that only male district attorneys and public defenders
were winning cases in one judge’s courtroom; perhaps the female district
attorneys and public defenders did poor work, or perhaps every case they
handled was weak. And perhaps the female attorney mentioned earlier who
was told to shut up was acting in an outrageous manner and deserved
harsh criticism.
Everyone would like to believe that all behavior is bias-free. Some women
spoke of their wish to believe that there are logical explanations behind
hostile and disrespectful behavior that is directed toward them. “A lot of
people are going to sugarcoat it,” one woman said at an Erie focus group.
“I know there’s a temptation to do that even within yourself…Gee, did that
really happen? Did I take that the wrong way? Is there something I did?”257
One of the challenges in identifying bias is the many ways in which it
manifests itself. It can be exhibited on an individual or a systemic level. It
can be overt or subtle. When it is subtle, it can be more difficult to target or
identify. But it undeniably causes real harm.
The Committee believes that this study of gender bias in the Pennsylvania
justice system raises powerful and useful questions. It demonstrates that
instances of gender bias in the Pennsylvania courts continue to thwart and
challenge female litigants, court employees, attorneys, and judges. Such bias
reflects “an unspoken hostility toward women or a discounting of their
abilities and talents,” Yohe said. This can compromise a client’s case: “And
if there is any possibility that may be happening, even rarely,” she went on,
“the reception of women by the courts becomes a matter that goes to the
heart of the fairness of our judicial system.”258

363

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THE COURTROOM

364

By commissioning this study and asking those appropriate questions,
the Supreme Court of Pennsylvania now has before it a multiplicity of
answers. In each focus group conducted by The Melior Group and
V. Kramer & Associates, the participants were asked about the role of the
judiciary in establishing standards for gender-biased conduct. In every
discussion, women of Pennsylvania stressed the primary importance of the
judge’s role in establishing and enforcing a level playing field within the
courtroom, where not even a hint of gender-biased conduct is tolerated.
“Their behavior can set the tone for what else goes on in the courtroom,” a
Philadelphia court employee pointed out, saying that if they are “exhibiting
behavior that is inappropriate—gender bias, racial bias—that affects
everybody else in the courtroom. It affects how justice is dispensed. Or at
least how people perceive it to be dispensed. You make them realize that in
those positions they have a lot of influence on what goes on in the room
and upon the people who are working in the room as well.”259 Another
attorney in Philadelphia spoke of the judge’s power to persuade and
compel. “When you have a judge who sends a message clearly that conduct
is inappropriate, then it is.”260
This fundamental belief in the judiciary’s power to establish and enforce
a system wherein bias is not tolerated is reflected in the findings and
recommendations of other task forces. Vicki Jackson, a professor at
Georgetown University Law Center, in the article, What Judges Can Learn
from Gender Bias Task Force Studies, observes: “In jurisdiction after
jurisdiction, task force reports show that the reported incidence of overtly
biased behavior by attorneys is greater outside the presence of a judge than
in settings before a judge. This is good news about the power of judges and
about lawyers…understandings of what judges stand for…Most lawyers
understand that invidious behavior is wrong and believe that judges will
enforce norms against such behavior or be offended themselves.”261 The
Third Circuit’s Task Force reached a similar conclusion: “Probably all
participants in and observers of the legal system would agree that the
conduct of judges themselves sets the standard for the system as a whole.”262
As noted by Lynn Hecht Schafran in her review of task force reports cited
previously, “Individually and collectively these reports provide overwhelming
evidence that gender bias permeates the court system and that women are
most often its victims.”263 Moreover, Schafran reports that studies of New
Jersey’s progress in its efforts to implement its task force recommendations
demonstrate that, with, “leadership from all segments of the bench and bar,
the task force reports can promote the learning and reform that is essential if
we are to eliminate gender bias in the profession and the courts.”264

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There are special challenges in responding to perceptions of gender bias.
The first is overcoming the reluctance to acknowledge the subject when
many want to believe that no bias exists, or to dismiss any perceptions of
bias as ill-conceived. Yet, as Yohe pointed out, “We need to talk about this,
wrestle with it, and be receptive to what women have to say. I hear too
frequently an impatience with this topic. We have not talked about it too
much; we have not talked about it near enough, and we have not been
willing to credit the perceptions of women about their treatment,
something on which surely they should be given the benefit of the
doubt.”265
The second challenge is a corresponding willingness to overlook instances of
bias because they are often subtle or open to other, rational explanations.
Ever sensitive to the fact that not all people perceive gender bias to be an
issue within the judicial system, the Third Circuit report nevertheless
concluded that, “Because of their visibility, their influence and the high
repute in which they should be held, even a few instances of perceived gender
bias by judges should be taken seriously and examined closely.”266
This problem was underscored by the attorney who reported her
colleague’s praise of her for not whining. She began her remarks by stating
that she was mostly unaware of gender bias being directed towards her.
She concluded her remarks by saying she found her colleague’s comments
“interesting.”267 She said nothing about those remarks being biased. But
other people could reasonably draw that conclusion.
The third challenge is fashioning appropriate preventive measures and
remedies in a climate where those aggrieved are reluctant to confront or
report the problem because they believe that such an act will result in harm
to their clients and/or their careers. It is ironic that in a system dedicated to
the fair and impartial redressing of wrongs without fear of reprisal to the
aggrieved parties, there are now many women who believe their own
grievances cannot or will not be adequately and fairly redressed.
The recommendations, which follow, address these challenges in a manner
that will serve the judiciary’s goal of eradicating all perceptions of gender
bias within the system.

365

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THE COURTROOM

MODEL CODES OF PROFESSIONAL
CONDUCT

366

The Committee concluded, based upon the findings of its study of
Perceptions and Occurrences of Racial, Ethnic, and Gender Bias in the
Courtroom, that the codes of professional conduct governing the behavior
of judges, attorneys, and court personnel should be modified to specifically
address biased behavior by those members of the legal community. In
December 2000, the Supreme Court of Pennsylvania adopted the Code
of Civility, designed to “assist judges and lawyers in how to conduct
themselves in a manner that preserves the dignity and honor of the
judiciary and the legal profession.” While the Committee applauds the
effort of the Court to encourage civility among members of the legal
community, given the data collected by the Committee, it recommends that
new sections be added to the existing Code of Judicial Conduct and to the
Code of Professional Responsibility specifically prohibiting the judiciary
and attorneys from manifesting bias in the performance of their duties. The
Committee also recommends that a code for court employees be adopted in
Pennsylvania prohibiting discriminatory conduct based on race, ethnicity,
and gender, among other factors.

JUDICIARY
Toward that end, the Committee reviewed codes of judicial conduct enacted
by other states and the model code recommended by the ABA. After much
deliberation, the Committee decided to recommend that the model code
drafted by the ABA be incorporated into the existing Pennsylvania Code of
Judicial Conduct. The pertinent sections are set forth below:

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

CANON 3

A JUDGE SHALL PERFORM THE DUTIES
OF JUDICIAL OFFICE IMPARTIALLY AND
DILIGENTLY.

CANON 3B(5)

A judge shall perform judicial duties without
bias or prejudice. A judge shall not, in the
performance of judicial duties, by words or
conduct manifest bias or prejudice, including
but not limited to bias or prejudice based upon
race, sex, religion, national origin, disability,
age, sexual orientation or socioeconomic
status, and shall not permit staff, court
officials and others subject to the judge’s
direction and control to do so.268
A judge shall require lawyers in proceedings
before the judge to refrain from manifesting,
by words or conduct, bias or prejudice based
upon race, sex, religion, national origin,
disability, age, sexual orientation or
socioeconomic status, against parties,
witnesses, counsel or others. This Section
3B(6) does not preclude legitimate advocacy
when race, sex, religion, national origin,
disability, age, sexual orientation or
socioeconomic status, or other similar factors
are issues in the proceedings.269

CANON 3B(6)

ATTORNEYS
Similarly, the Committee reviewed codes of conduct for practicing
attorneys in other states, as well as the model rules of professional
conduct recommended by the ABA. Pennsylvania’s Code of Professional
Responsibility incorporates the model rule of professional conduct
recommended by the ABA set forth below:
Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:
− (d) Engage in conduct that is prejudicial to the administration of justice.
Based upon its review, the Committee recommends that the Code of
Professional Responsibility governing the behavior of attorneys licensed to
practice in Pennsylvania be amended to include the following additional
provision:

367

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THE COURTROOM

A lawyer violates the prohibition against conduct that is
prejudicial to the administration of justice when, in the course
of representing a client, manifests by words or conduct, bias or
prejudice based upon race, sex, religion, national origin,
disability, age, sexual orientation or socioeconomic status.

COURT PERSONNEL

368

Codes of professional conduct for court employees are a recent
development built on similar codes for judges and lawyers. New Jersey
adopted the first state code for court personnel.270 There is also a national
code promulgated by the National Association for Court Management.271
Additionally, the states of California and Vermont have adopted a code of
conduct governing the behavior of judicial branch personnel.272 Based upon
its review of the various conduct codes for court personnel, the Committee
recommends that Pennsylvania adopt the following code for employees of
the court to follow:
Employees of the court shall not, in conduct of service to the
court and public, discriminate on the basis of, nor manifest by
verbal or written comment or conduct, a bias or prejudice based
upon race, color, sex, religion, national origin, ancestry, age,
disability, marital status, sexual orientation or socioeconomic
status that adversely affects the person's ability to use the
facilities or services provided by the Judiciary. Discriminatory
behavior also includes any actions, either implicit or explicit,
which adversely affect an employee’s work assignment, work
environment, salary, career or promotional opportunities due to
a bias or prejudice based upon race, color, sex, religion national
origin, ancestry, age, disability, marital status, sexual orientation
or socioeconomic status.

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THE COURTROOM

MODEL GRIEVANCE PROCEDURES
Approximately 10 years ago, the Women in the Law Committee of the ACBA
formed a special committee to receive and resolve specific reports of gender
bias made by attorneys against judges, lawyers, and court personnel.273 The
Philadelphia Bar Association followed suit in 1999, appointing a similar
committee, but with a broader mission.274 The Philadelphia committee collects
and evaluates information about instances of bias in the Philadelphia legal
system by lawyers, judges, court-related personnel, and other persons acting in
a judicial capacity. The appointed committees devised a set of procedures for
individuals to use in filing their reports and obtaining effective resolutions of
the issues raised in the reports. The strategies set forth below, or similar
strategies, can be adopted by the bar associations of other counties in
Pennsylvania, or by a single statewide committee created to address the
problem of bias within the legal community.
The salient features of the systems set in place by the Allegheny County and
Philadelphia committees include the following:
•

A report form is made available by the committee to individuals who feel
they have suffered an act of bias. Oral reports can also be made. Reports
can be anonymous to protect confidentiality.

•

Committee members typically review the report and determine whether,
on its face, it has merit.

•

One of several possible procedures is selected by the Committee for
resolving the matter, including:
− An initial, informal conference held between the representatives of the
committee and the responding party;
− A meeting between the complaining party and responding party in the
presence of the members of the committee;
− A formal conference held between the committee representatives and
the responding party;
− A letter sent to the responding party by the committee; or
− A formal complaint filed against the responding party with the
appropriate authority such as the Judicial Conduct Board or the
Disciplinary Board of the Supreme Court of Pennsylvania.

•

Care is taken to preserve the confidentiality of the complaining party and
to avoid generating unnecessary publicity that might embarrass both the
complaining and responding parties.

369

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370

The committees recognize that in addition to their complaint resolution
function, they also play an educational role in making judges, lawyers,
court personnel, and litigants aware of the existence of bias and steps
to discourage it. Toward that end, committees design, advocate, and
implement seminars and other educational programs aimed at achieving
fairness in the legal system. Some observers believe that implementation of
a grievance procedure at the local level may render it more effective. Local
pressure, or pressure from peers in the legal community to prevent bias,
may be more effective than pressure from a more impersonal statewide
body. If the procedure is established on a local level, however, it is critical
for the local entity periodically to report the filings and resolutions to a
statewide commission, in order to create a statewide database of such
reports. (See Recommendation 1 for the Pennsylvania Supreme Court,
below). Finally, the existence of such a committee reinforces the
commitment of the legal community to justice and fairness and restores
confidence in the legal system among those who feel that the issue of
bias is not being addressed.

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THE COURTROOM

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Ensure that an effective and impartial grievance procedure,275 that takes
into account the confidentiality needs of the grievant, be available to
any person participating in the court system of the Commonwealth
who believes that he or she has experienced unfair treatment because
of racial, ethnic, or gender biased speech or conduct on the part of a
judicial officer, officer of the court, or court employee.
2. Direct that judicial officers adopt and maintain a policy of zero
tolerance for racial, ethnic, and gender bias in their courtrooms. In
order to assist judicial officers in reaching this goal, the following
steps should be taken:
• all judicial officers should receive periodic mandatory training on the
issues surrounding racial, ethnic, and gender bias, including:
– civility within the courtroom;
– cultural diversity and its effect upon treatment in the court system;
– what constitutes, or can be perceived to constitute racial-, ethnic-,
and gender-biased language and conduct;
– the effect of racial, ethnic, and gender biases upon determinations
of credibility and competence; and
– the racial, ethnic, and gender stereotypes and cultural impediments
that inhibit minorities, persons of varying ethnic backgrounds, and
women from having confidence in, and utilizing, the
Commonwealth’s judicial system.
• a handbook should be developed and distributed to every courtroom
in the Commonwealth setting forth conduct that is objectionable and
suggesting appropriate forms of speech. (A similar type of handbook
developed by the Supreme Court of Texas Gender Fairness Task
Force may be replicated for use in Pennsylvania.)
3. Require that all Pennsylvania attorneys receive training concerning the
effects of racial, ethnic, and gender bias within the legal system as part
of their continuing mandatory legal ethics education requirement. The
subject matter of this training should include topics such as those set
forth above in Recommendation for the Pennsylvania Supreme Court,
Number 2.

371

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4. Direct that all court employees receive training concerning the effects
of racial, ethnic, and gender bias within the legal system. The subject
matter of this training should include topics such as those set forth
above in Recommendation for the Pennsylvania Supreme Court,
Number 2.

372

5. Examine and modify, where necessary, and in a manner consistent with
the provisions of the First Amendment, all relevant ethical and civility
codes to state clearly that racial, ethnic, and gender-biased speech and
conduct are violations of these codes. The Committee’s recommended
codes of conduct were set forth previously in this chapter.
6. Direct that the judiciary take all necessary steps to enlarge minority
representation on juries, in accordance with the recommendations
enumerated in Chapter 2.

TO BAR ASSOCIATIONS
The Committee recommends that bar associations:
1. Establish and implement policies and procedures for encouraging
minorities and women to seek and obtain positions as judicial officers.
2. Cooperate with the Supreme Court in establishing and maintaining a
confidential grievance procedure available to any person who believes
he or she has been the recipient of racial-, ethnic-, or gender-biased
speech or conduct by an attorney.
3. Initiate and maintain a “mentoring” system for law school graduates
and those attorneys recently admitted to the bar, with special attention
directed toward minority and female attorneys, whereby those
attorneys seeking mentors are paired with a more experienced attorney.

TO LAW SCHOOLS
The Committee recommends that all Pennsylvania law schools:
1. Educate students about the effects of racial, ethnic, and gender bias
within the legal system as part of their obligation to provide legal ethics
education. The subject matter of this educational information should
include topics such as those set forth above in Recommendation for the
Pennsylvania Supreme Court, Number 2.

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

2. Provide opportunities for law school faculty to become better informed
about the effects of racial, ethnic, and gender bias in their teaching and
in the legal educational environment, and to consider ways of better
educating students about the effects of bias in the legal process.
3. Affirmatively recruit men and women of color, as faculty and students,
and offer mentoring networks for enrolled students.

TO LAW ENFORCEMENT AGENCIES
The Committee recommends that law enforcement agencies:
1. Provide training to law enforcement officers and agents concerning the
effect of racial, ethnic, and gender bias within the law enforcement and
legal systems. The subject matter of this training should include topics
such as those set forth above in Recommendation for the Pennsylvania
Supreme Court, Number 2. Additional relevant information should also
be presented concerning bias within the context of investigative,
detention, and arrest practices and procedures employed by law
enforcement agents with regard to racial and ethnic minorities.
2. Establish and maintain an effective and impartial grievance procedure
available to any person who believes he or she has been the recipient
of racial-, ethnic-, or gender-biased speech or conduct by any law
enforcement official or employee of a law enforcement agency.
Information concerning the grievance procedure should be clearly set
forth and prominently displayed at all law enforcement offices and
other appropriate venues.

373

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ENDNOTES
············································

374

1

The Melior Group/V. Kramer & Associates, Racial Roundtable Discussion, Philadelphia Attorney
Transcript, p. 27 (2001), attached in Appendix Vol. II [hereinafter Melior Group Racial
Philadelphia Attorney Transcript].

2

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, p. 11 (April 2002), attached in Appendix Vol. II [hereinafter Melior Group
Racial Bias Final Report].

3

Id. at 15.

4

Report of the Working Committees to the Second Circuit Task Force on Gender, Racial, and Ethnic
Fairness in the Courts, 1997 Ann. Surv. Am L. 117, p. 419 [hereinafter Second Circuit Report].

5

Melior Group Racial Bias Final Report, supra at 10–14.

6

Testimony of Ronald Felton, Wilkes-Barre Public Hearing Transcript, pp. 64–65.

7

Philadelphia Bar Association Report of the Special Committee on Employment of Minorities in the
Legal Profession, Appendix p. 22, and Table 12 (1988), attached in Appendix Vol. II [hereinafter
Special Committee Report].

8

During that same time period, large firms (more than 75 attorneys) increased their minority attorney
presence from 1.7 percent to 3 percent; small/medium firms increased from 0.2 percent to 2.9 percent;
and corporations actually decreased their minority hiring, with the number of minority attorneys
declining from 7.1 percent in 1976 to 6.7 percent in 1985. See Special Committee Report, supra.

9

See American Bar Association, Section of Legal Education and Admissions to the Bar, Table C-10,
Memorandum QS0102-28 dated Feb. 27, 2002; Memorandum QS0102-22 dated Feb. 27, 2002;
Memorandum QS0102-20, dated Feb. 27, 2002, attached in Appendix Vol. II.

10

The Melior Group/V. Kramer & Associates, Racial Roundtable Discussion, Pittsburgh Attorney
Transcript, pp. 3–4 (2001), attached in Appendix Vol. II [hereinafter Melior Group Racial
Pittsburgh Attorney Transcript].

11

The Melior Group/V. Kramer & Associates, Racial Roundtable Discussion, Philadelphia Court
Employees Transcript, pp. 33–34 (2001), attached in Appendix Vol. II [hereinafter Melior Group
Racial Philadelphia Court Employees Transcript].

12

Melior Group Racial Pittsburgh Attorney Transcript, supra at 9.

13

See Chapter 8 of this Report, Employment and Appointment Practices of the Courts.

14

See also Profile of Pennsylvania Judiciary, Chapter 8 of this Report.

15

Id.

16

Id.

17

Id.

18

Testimony of Beata Peck Little, Wilkes-Barre Public Hearing Transcript, pp. 12–13. [hereinafter
Peck Little Testimony]; see also, Monroe County Needs Assessment, p. 11, which notes that
according to the U.S. Census Bureau, there were 2,052 Latinos living in Monroe County in 1990,
compared with 9,195 in 2000, and that the African American population of the county increased
from 1,727 in 1990 to 8,343 in 2000.

19

Testimony of Felipe Restrepo, Harrisburg Public Hearing Transcript, p. 85.

20

See Chapter 2 of this Report, Racial and Ethnic Bias in Jury Selection.

21

This perception is borne out by studies conducted for the Committee. See Ralph B. Taylor
and Lillian Dote, Understanding the Juror Selection Processes Through Jury Documents and
Administrator Surveys: Exploring Implications for Under-Representation of Populations of
Color, Phase I report to the Work Group on Racial and Gender Bias in Jury Selection (Philadelphia:
August 2001), p. 41, Appendix Vol. II; and Ralph B. Taylor and Jerry H. Ratcliff, Potential Under-

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

Representation by Race and Class in the Middle Stages of Juror Selection in the Commonwealth
of Pennsylvania: A Located Analysis, Phase II report to the Work Group on Racial Bias in Jury
Selection (Philadelphia: June 2002), p. 9, Appendix Vol. II.
22

The Melior Group/V. Kramer & Associates, Racial Roundtable Discussion, Harrisburg Attorney
Transcript, p. 4 (2001), attached in Appendix Vol. II [hereinafter Melior Group Racial Harrisburg
Attorney Transcript].

23

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, Judges Report, pp. 7–8 (2002), attached in Appendix Vol. II [hereinafter
Melior Group Racial Bias Judges Report].

24

Melior Group Racial Philadelphia Court Employees Transcript, supra at 7–8.

25

Special Committee Report, supra at 44.

26

Id. at 30.

27

Melior Group Racial Bias Judges Report, supra at 7–8.

28

Third Circuit Task Force Report on Equal Treatment in the Courts, 42 Vill. L. Rev. 1355, 1385
(1997) [hereinafter Third Circuit Report].

29

Id. at 1607.

30

Melior Group Racial Pittsburgh Attorney Transcript, supra at 7.

31

Id at 19.

32

Id. at 18.

33

Melior Group Racial Bias Judges Report, supra at 5.

34

Based upon data from the AOPC, minorities constitute 4 percent of the Pennsylvania judiciary.
There is no reliable data kept on the racial composition of attorneys licensed to practice in
Pennsylvania, but based on all reports collected by the Committee during the course of the study, it
is a small percentage. Similarly, data on the racial composition of the court personnel system is not
uniformly kept, but based upon data supplied to the Committee, as detailed in Chapter 8 of this
Report, minorities constitute a small percentage of court personnel statewide.

35

Third Circuit Report, supra at 1378–9.

36

Testimony of Ted Darcus, Harrisburg Public Hearing Transcript, p. 114.

37

See footnote 34 and Chapter 8 of this Report, Employment and Appointment Practices of the Courts.

38

Melior Group Racial Pittsburgh Attorney Transcript, supra at 9–10.

39

Melior Group Racial Harrisburg Attorney Transcript, supra at 7.

40

Melior Group Racial Pittsburgh Attorney Transcript, supra at 19.

41

Melior Group Racial Harrisburg Attorney Transcript, supra at 10.

42

Id. at 5.

43

Melior Group Racial Bias Judges Report, supra at 6.

44

Melior Group Racial Philadelphia Attorney Transcript, supra at 5.

45

Id. at 5–6.

46

Testimony of Elizabeth Shuster, Harrisburg Public Hearing Transcript, pp. 142–143.

47

Melior Group Racial Pittsburgh Attorney Transcript, supra at 22.

48

Special Committee Report, supra at 44–45.

49

Third Circuit Report, supra at 1377.

50

Special Committee Report, supra at 45.

51

Melior Group Racial Harrisburg Attorney Transcript, supra at 13.

52

Melior Group Racial Philadelphia Attorney Transcript, supra at 6.

53

Melior Group Racial Harrisburg Attorney Transcript, supra at 11.

375

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376

54

Testimony of Honorable Kathryn S. Lewis, Philadelphia Public Hearing Transcript, p. 31
[hereinafter Lewis Testimony].

55

See transcript of proceedings in Commonwealth of Pennsylvania v. Athena Carter, Montgomery County
Court of Common Pleas, July 25, 1995, at p. 24. The transcript is found in Appendix Vol. II.

56

Third Circuit Report, supra at 1580.

57

Melior Group Racial Philadelphia Court Employees Transcript, supra at 6.

58

Id.

59

Id. at 5.

60

Melior Group Racial Harrisburg Attorney Transcript, supra at 11.

61

Melior Group Racial Philadelphia Attorney Transcript, supra at 6.

62

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, Attorneys Report, p. 4 (2002), attached in Appendix Vol. II [hereinafter
Melior Group Racial Bias Attorneys Report].

63

Testimony of Richard Garland, Pittsburgh Public Hearing Transcript, p. 148 [hereinafter Garland
Testimony].

64

Melior Group Racial Philadelphia Attorney Transcript, supra at 32.

65

Id. at 10.

66

Melior Group Racial Harrisburg Attorney Transcript, supra at 11.

67

See footnote 34 and Chapter 8 of this Report, Employment and Appointment Practices of the
Courts.

68

Testimony of Carl Romanelli, Wilkes-Barre Public Hearing Transcript, p.185.

69

Melior Group Racial Pittsburgh Attorney Transcript, supra at 5.

70

Melior Group Racial Bias Judges Report, supra at 4–5.

71

Testimony of Judy Ariola-Rivera, Wilkes-Barre Public Hearing Transcript, p. 39.

72

Peck Little Testimony, supra at 14–15.

73

Garland Testimony, supra at 146.

74

Id. at 145.

75

Melior Group Racial Philadelphia Attorney Transcript, supra at 3.

76

Melior Group Racial Harrisburg Attorney Transcript, supra at 6–7.

77

Testimony of Jerome Mondesire, Philadelphia Public Hearing Transcript, pp. 47–48.

78

African American males are more likely to be incarcerated than white males and are given sentences
that are on average over four months longer than those of white males. Latino males are even more
likely to be incarcerated than African American males and are likely to be incarcerated for longer
periods of time. All comparisons are made to white males. See Report prepared for the
Pennsylvania Supreme Court Committee on Race and Gender Bias prepared by John H. Kramer,
Ph.D. and Jeffrey T. Ulmer, Ph.D. The Pennsylvania State University, attached at Appendix Vol. II;
see also Chapter 4 of this Report.

79

Third Circuit Report, supra at 1378.

80

Peck Little Testimony, supra at 14–15.

81

Various county bar associations and law firms have implemented grievance procedures or other
informal measures designed to address perceived incidents of racial bias or discrimination.

82

Melior Group Racial Philadelphia Attorney Transcript, supra at 20.

83

Id. at 22.

84

Melior Group Racial Bias Judges Report, supra at 8.

85

The AOPC reported to the Committee that the training for new judges in 2002 included four hours
on racial bias issues and that in July 2002, the annual trial judges conference included a three-hour
seminar on racial disparities in sentencing.

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

86

Melior Group Racial Bias Judges Report, supra at 1.

87

Melior Group Racial Pittsburgh Attorney Transcript, supra at 24.

88

Id. at 25.

89

Id. at 23.

90

Melior Group Racial Philadelphia Attorney Transcript, supra at 18.

91

Final Report of the New Jersey Supreme Court Task Force on Minority Concerns, p. 200 (1992).

92

Id. at 204–205.

93

Id. at 208.

94

Final Report of the Michigan Supreme Court Task Force on Racial/Ethnic Issues in the Courts, p. 2
(1989).

95

Id. at 36, 37.

96

Where the Injured Fly for Justice, A Ten-Year Retrospect on the Report and Recommendations of
the Florida Supreme Court Racial and Ethnic Bias Study Commission, p. iii (2000).

97

Id. at 3.

98

Id. at 7.

99

Id. at 39.

100

Washington State Minority and Justice Commission Annual Report, pp. 38–39 (2001).

101

Report of the New York State Judicial Commission on Minorities, p. 13 (1991).

102

Id. at 27.

103

Id. at 91.

104

Final Report of the Commission to Study Racial and Ethnic Bias in the Courts, Massachusetts
Supreme Judicial Court, p. i (1994).

105

Id. at 117.

106

Id. at 64. (Sixty-three percent of all attorneys surveyed, who had an opinion, responded that white
jurors sympathize more with victims who are white than they sympathize with minority victims.)

107

Report of the Oregon Supreme Court Task Force on Racial/Ethnic Issues in the Judicial System,
p. iv (1994).

108

Id. at v.

109

State of Connecticut Judicial Branch Task Force on Minority Fairness, Full Report, pp. 52–53 (1996).

110

Id.

111

Id. at 52.

112

Id. at 53.

113

Id.

114

The Report of the Ohio Commission on Racial Fairness, p.14 (1999).

115

Id. at 14–18.

116

The Gender, Race and Ethnic Bias Task Force Project in the D.C. Circuit, p. IVB-5 (1995).

117

Id. at IVB-2.

118

Id. at IVB-3.

119

Id. at IVB-23–IVB-27.

120

Ninth Circuit Task Force on Racial, Religious & Ethnic Fairness, Final Report, p. 7 (1997).

121

Id.

122

Id.

123

Second Circuit Report, supra at 422.

124

Id. at 437.

125

Id. at 452.

377

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

378

126

Id. at 437.

127

Third Circuit Report, supra at 1378.

128

Id. at 1387.

129

Id. at 1580.

130

Id. at 1580.

131

Id. at 1385.

132

Id. at 1378–1379.

133

Melior Group Racial Bias Final Report, supra at 16.

134

Melior Group Racial Philadelphia Attorney Transcript, supra at 5.

135

Melior Group Racial Bias Final Report, supra at 9.

136

Melior Group Racial Philadelphia Court Employees Transcript, supra at 25.

137

Testimony of Susan Yohe, Pittsburgh Public Hearing Transcript, pp. 217–218 [hereinafter Yohe
Testimony].

138

Melior Group Racial Pittsburgh Attorney Transcript, supra at 6.

139

Third Circuit Report, supra at 1380.

140

Testimony of Dr. Stan Hamilton, Wilkes-Barre Public Hearing Transcript, pp. 293, 303.

141

Lewis Testimony, supra at 24.

142

The Work Group developed a working definition of bias, based on definitions offered by
participants in the focus groups and common usage of the term “gender bias” in the literature and
by the task forces of other jurisdictions. Gender bias was defined as differential or unequal
treatment based on gender when it is not appropriate—in situations where gender should not make
a difference. In addition, gender bias can be defined as behavior or decision-making that is based on
stereotypical attitudes, myths and misconceptions.

143

See Pennsylvania Bar Association, Commission on Women in the Profession, 2002 Report Card,
attached in Appendix Vol. II [hereinafter PBA 2002 Report Card].

144

The focus groups were conducted by the Melior Group, a Philadelphia-based independent
marketing research organization, and V. Kramer & Associates, a private consulting firm specializing
in individual and organizational effectiveness. Both firms were engaged by the Committee to
conduct focus groups and interviews on topics of racial and gender bias in the courtroom.

145

National Association for Law Placement (NALP) Bulletin, p. 4 (August 2002).

146

The Melior Group/V. Kramer & Associates, Gender Roundtable Discussion, Philadelphia Court
Employees Transcript, p. 18, attached in Appendix Vol. II [hereinafter Melior Group Gender
Philadelphia Court Employees Transcript].

147

PBA 2002 Report Card, supra at 13.

148

The Melior Group/V. Kramer & Associates, Gender Roundtable Discussion, Harrisburg Transcript,
p. 1, attached in Appendix Vol. II [hereinafter Melior Group Gender Harrisburg Transcript].

149

As of 2002, one of seven (14 percent) justices of the Supreme Court of Pennsylvania is female, as
are five of 15 (33 percent) Superior Court judges and five of nine (over 50 percent) Commonwealth
Court judges. PBA 2002 Report Card, supra at 14.

150

PBA 2002 Report Card, supra at 13.

151

Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Gender
Bias in the Courtroom, Judges Report, pp. 5–6 (2001), Appendix Vol. II [hereinafter Melior Group
Gender Judges Report].

152

PBA 2002 Report Card, supra at 7–9. Compare with 1995 survey wherein 29 percent of female
attorney respondents and 53 percent of male attorney respondents noted that they were working for
organizations or law firms where there were no women in senior level positions. See Pennsylvania Bar

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

Association Joint Task Force to Ensure Gender Fairness in the Courts, Interim Report No. 1, p. 3, 10
(May 1995), attached in Appendix Vol. II [hereinafter PBA Interim Report No. 1].
153

Allegheny County Bar Association Gender Survey Report, p. 19 (1991), attached in Appendix Vol.
II. (Female attorneys’ average salary was between $35,000–$45,900; male attorneys’ average salary
was between $60,000–$79,000.); PBA Interim Report, supra at 3, 11 (Female attorneys in
Pennsylvania earn an average of $30,000 less per year than male attorneys).

154

The Melior Group/V. Kramer & Associates, Gender Roundtable Discussion, Philadelphia Attorney
Transcript, p. 25 (2001), attached in Appendix Vol. II [hereinafter Melior Group Gender
Philadelphia Attorney Transcript].

155

See Women in Law: Making the Case, 2001, attached in Appendix Vol. II.

156

Melior Group Philadelphia Attorney Transcript, supra at 22.

157

Yohe Testimony, supra at 219.

158

Id. at 220–221.

159

Testimony of Caren Bloom, State College Public Hearing Transcript, p.150 [hereinafter Bloom
Testimony].

160

The Melior Group/V. Kramer & Associates, Gender Roundtable Discussion, Erie Attorney Transcript,
p. 14, attached in Appendix Vol. II [hereinafter Melior Group Gender Erie Attorney Transcript].

161

Third Circuit Report, supra at 1413.

162

Melior Group Gender Philadelphia Attorney Transcript, supra at 11–13.

163

Melior Group Gender Harrisburg Transcript, supra at 10.

164

Id.

165

Yohe Testimony, supra at 221.

166

Melior Group Gender Erie Attorney Transcript, supra at 3.

167

Testimony of Joanne Tosti-Vasey, State College Public Hearing Transcript, p. 295 [hereinafter TostiVasey Testimony].

168

Testimony of Shelley Pagac, Pittsburgh Public Hearing Transcript, p. 168.

169

Melior Group Gender Harrisburg Transcript, supra at 32.

170

Yohe Testimony, supra at 222–223.

171

Melior Group Gender Harrisburg Transcript, supra at 6.

172

Bloom Testimony, supra at 158.

173

Melior Group Gender Philadelphia Attorney Transcript, supra at 23.

174

Tosti-Vasey Testimony, supra at 299.

175

Melior Group Gender Philadelphia Attorney Transcript, supra at 26.

176

Yohe Testimony, supra at 222–223.

177

Wilkes-Barre Personal Injury Attorney Roundtable Discussion, summary as prepared by Joseph A.
Lach, Esquire, pp. 4–5 (December 12, 2001), attached in Appendix Vol. II [hereinafter Wilkes-Barre
Roundtable Discussion].

178

Third Circuit Report, supra at 1404.

179

Melior Group Gender Harrisburg Transcript, supra at 21.

180

Wilkes-Barre Roundtable Discussion, supra at 4.

181

Melior Group Gender Erie Attorney Transcript, supra at 5.

182

Vicki C. Jackson, What Judges Can Learn From Gender Bias Task Force Studies, Vol. 81, Number
1 Judicature Magazine (July–August, 1997), p. 16; quoting Judge Wald, A Thousand Cuts: The
Reality and Perception of Discrimination, remarks at the Aspen Law and Business Third Annual
Institute; Woman Advocate 1995, p. 17 (June 12, 1995) [ hereinafter Jackson].

183

Melior Group Gender Erie Attorney Transcript, supra at 24.

184

Melior Group Gender Philadelphia Attorney Transcript, supra at 23.

185

Bloom Testimony, supra at 155–156.

379

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

380

186

Yohe Testimony, supra at 222.

187

Melior Group Gender Erie Attorney Transcript, supra at 29.

188

Third Circuit Report, supra at 1387, 1406.

189

Tosti-Vasey Testimony, supra at 299–300.

190

Melior Group Gender Philadelphia Attorney Transcript, supra at 32.

191

Melior Group Gender Erie Attorney Transcript, supra at 20.

192

Id. at 27.

193

Id. at 17.

194

Id. at 16.

195

Examples include PBA Interim Report No. 1, supra at 13–14; Jackson, supra at 16; Third Circuit
Report, supra at 1407.

196

Melior Group Gender Erie Attorney Transcript, supra at 23.

197

Melior Group Gender Philadelphia Attorney Transcript, supra at 4.

198

Id.

199

Melior Group Gender Judges Report, supra at 6.

200

The 1991 ACBA Gender Survey Report found that 43 percent of all respondents, including males
and females, believed comments were often or sometimes made about the personal appearance of
women when similar comments were not made about men. See Appendix survey and result, p. 10.
Similarly, 51 percent of female attorney respondents said other lawyers frequently or sometimes
commented on their appearance or clothes, while only 17 percent of the male attorneys reported
that this happened to them. See PBA Interim Report No. 1, supra at 14–15.

201

Melior Group Gender Philadelphia Attorney Transcript, supra at 3.

202

Id. at 19.

203

Tosti-Vasey Testimony, supra at 297.

204

Lewis Testimony, supra at 31.

205

Melior Group Gender Philadelphia Attorney Transcript, supra at 9.

206

Bloom Testimony, supra at 156–159.

207

Melior Group Gender Philadelphia Attorney Transcript, supra at 7–8.

208

Testimony of Deborah Donahue, State College Public Hearing Transcript, p. 6.

209

Melior Group Gender Judges Report, supra at 6.

210

Melior Group Gender Philadelphia Court Employees Transcript, supra at 8.

211

Melior Group Gender Erie Attorney Transcript, supra at 19.

212

Melior Group Gender Philadelphia Court Employees Transcript, supra at 4.

213

Id.

214

Id. at 9–10.

215

Id.

216

Presently there are no statewide reporting or grievance procedures concerning gender bias. There
are, of course, various federal and state statutes concerning sex discrimination.

217

Melior Group Gender Erie Attorney Transcript, supra at 18.

218

Melior Group Gender Harrisburg Transcript, supra at 30.

219

Yohe Testimony, supra at 225.

220

Melior Group Gender Erie Attorney Transcript, supra at 28.

221

Id.

222

Melior Group Gender Philadelphia Court Employees Transcript, supra at 16.

223

Melior Group Gender Philadelphia Attorney Transcript, supra at 24.

224

Melior Group Gender Harrisburg Transcript, supra at 26.

225

Id.

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

226

Melior Group Gender Erie Attorney Transcript, supra at 27.

227

Lynn Hecht Schafran, Overwhelming Evidence: Report on Gender Bias in the Courts, Trial
Magazine, 28–34 (Feb. 1990) [hereinafter Schafran].

228

Id. at 28.

229

Washington State Task Force on Gender and Justice in the Courts, pp. 113–114 (1989).

230

Id. at 124.

231

Id. at 130.

232

Id. at 115.

233

Id. at 123.

234

Final Report of the Michigan Supreme Court Task Force on Gender Issues in the Courts, p. 3 (1989).

235

Gender Bias Study of the Court Systems in Massachusetts, p. 146 (1989).

236

Id. at 157.

237

Id. at 160.

238

Colorado Supreme Court Task Force on Gender Bias in the Courts, Final Report, p. 1 (1990).

239

Id. at 9.

240

Id. at 115–116.

241

Oregon Supreme Court/Oregon State Bar Task Force on Gender Fairness, p. 1 (1998).

242

Id.

243

Id.

244

Id. at 2.

245

Id.

246

Virginia Task Force, Gender Bias in the Courts of the Commonwealth, Final Report, p. 1 (2000).

247

The Effects of Gender in the Federal Courts, The Final Report of the Ninth Circuit Gender Bias
Task Force, p. 49 (1993).

248

The Final Report of the Eighth Circuit Gender Fairness Task Force, p. 87 (1997).

249

Id. at 97.

250

Id.

251

Id. at 119.

252

Yohe Testimony, supra at 224.

253

Melior Group Gender Erie Attorney Transcript, supra at 6.

254

Melior Group Gender Harrisburg Transcript, supra at 17–18.

255

Melior Group Gender Philadelphia Attorney Transcript, supra at 11.

256

Melior Group Gender Erie Attorney Transcript, supra at 28.

257

Id. at 3.

258

Yohe Testimony, supra at 220.

259

Melior Group Gender Philadelphia Court Employees Transcript, supra at 23.

260

Melior Group Gender Philadelphia Attorney Transcript, supra at 9.

261

Jackson, supra at 18.

262

Third Circuit Report, supra at 1399.

263

Schafran, supra at 28.

264

Id. at 35

265

Yohe Testimony, supra at 223.

266

Third Circuit Report, supra at 1399.

267

Melior Group Gender Philadelphia Attorney Transcript, supra at 23.

268

As of 1998 the following states and the District of Columbia had adopted provisions identical (or
almost so) to Canon 3B(5): Arizona, California, Florida, Georgia, Hawaii, Kansas, Maine,

381

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Mexico, New York, North Dakota,
Rhode Island, Tennessee, Texas, Utah, Vermont, West Virginia and Wyoming.
269

As of 1998 the following states and the District of Columbia had adopted provisions identical (or
almost so) to Canon 3B(6): Arizona, California, Florida, Hawaii, Indiana, Kansas, Maryland,
Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York,
North Dakota, Rhode Island, Tennessee, Texas, Vermont, Wisconsin and Wyoming.

270

The Supreme Court State of New Jersey Code of Conduct for Judiciary Employees is attached in
Appendix Vol. II.

271

(2) National Association for Court Management: Model Code of Conduct; Article IV.C.
Members shall not discriminate on the basis of, nor manifest by words or conduct, a bias or
prejudice based upon race, color, religion, national origin, gender, or other groups protected by law,
in conduct of service to the court and public.

382
272

(1) California: Code of Ethics for the Court Employees of California
Tenet Ten

Guard against, and, when necessary, repudiate any act of discrimination or bias based on race,
gender, age, religion, national origin, language, appearance, or sexual orientation.
Guideline for Tenet Ten—
Each day court employees assist users of court services of many races, religions, national origins,
languages, sexual orientations, and varieties of personal appearances. They may deal with accused
felons, child abusers, participants in painful dissolutions, those grieving from an injury or loss of a
loved one, or people experiencing any one of numerous kinds of human pain or dysfunction. Court
employees are expected to treat each other and each user of court services equally and with compassion.
Equal access to the court system and equal treatment for all is the cornerstone of the administration of
justice. Court employees must expose and discourage discrimination wherever it exists.
Tenet Eleven

Renounce any use of positional or personal power to harass another person sexually or in any other
way based on that person’s religious beliefs, political affiliation, age, national origin, language,
appearance, or other personal choices and characteristics.
Guideline for Tenet Eleven—
Court employees are to refrain from making sexual advances and insinuations that are
inappropriate and offensive, or that could be perceived as such. Harassment may also take
nonsexual forms such as verbal, physical, and psychological. The investigation of a harassment
complaint is difficult because a determination will often be based on the credibility of the parties. A
supervisor is obligated, however, to conduct a prompt and through investigation of any allegations
of harassment. If the investigation reveals that harassment has occurred, corrective action should be
taken immediately. The supervisor should then conduct further inquiry to ensure that the action
was effective and that the harasser has not retaliated against the complainant.
(3) Vermont: Judicial Branch Personnel Policy
It is the policy of the Judiciary that discriminatory behavior will not be condoned or tolerated.
Discriminatory behavior includes any implicit or explicit action or behavior based on race, color, sex,
religion, national origin, ancestry, age, disability, marital status, or sexual orientation which adversely
affects the person’s ability to use the facilities or services provided by the Judiciary. It also includes
verbal or written comments or actions which disparage or deride an individual’s race, color, sex,
religion, national origin, ancestry, age, disability, marital status, or sexual orientation. Discriminatory
behavior also includes any actions, either implicit or explicit, which adversely affect an employee’s
work assignment, work environment, salary, career or promotional opportunities due to race, color,
sex, national origin, ancestry, age, disability, marital status, or sexual orientation. Any employee who
violates this policy is subject to disciplinary action up to and including dismissal.
273

The Gender Bias Subcommittee of the Women in the Law Committee of the Allegheny County Bar
Association was established in 1993.

PERCEPTIONS AND OCCURRENCES OF RACIAL, ETHNIC, AND GENDER BIAS IN
THE COURTROOM

274

The Committee to Promote Fairness in the Legal System of the Philadelphia Bar Association was
established in 1999.

275

The Committee recognizes that there may be existing effective procedures in place in some counties
that address these concerns. Significantly, procedures that are in place in Allegheny County and
Philadelphia rely principally on an informal resolution process that is possible because of the
voluntary collaborative work of well-respected judges and lawyers who are able to communicate
with both judicial officers and court participants. The Code of Judicial Conduct, as well as the
Code of Civility, also includes provisions that may subject judicial officers to sanctions for some
kinds of conduct evidencing bias. The Committee believes that there is value in having procedures
in place and available to all participants in the judicial system that can address informally and,
when necessary, more formally, a broad array of bias-related conduct and speech that can adversely
affect the experiences of the participants. The procedures should have an education component so
that participants are informed about the opportunities and procedures for grieving and resolving
perceived bias. It is also important for data to be collected centrally to better inform the courts
about the prevalence of experiences and perceptions of bias.

383

10

DOMESTIC VIOLENCE

386

INTRODUCTION

388

SYNOPSIS OF FINDINGS AND RECOMMENDATIONS

390

GENERAL FINDINGS

404

CONCLUSION

405

OTHER TASK FORCE FINDINGS

408

BEST PRACTICES

412

RECOMMENDATIONS

415

ENDNOTES

DOMESTIC VIOLENCE

INTRODUCTION

386

Experts define domestic violence as purposeful, violent behavior used to
maintain power and control over an intimate partner.1 As such, it imposes
enormous physical, psychological, and financial risks upon the survivors2 of
domestic violence, most often women and their children. According to the
Centers for Disease Control and Prevention, nearly one million incidents of
non-lethal intimate partner violence (defined as violence between spouses
or past/present intimate partners) occurred in the U.S. from 1992 through
1996, and women accounted for 86 percent of the people who were
abused.3 The National Coalition Against Domestic Violence estimated that
more than 50 percent of all women will experience physical violence in an
intimate relationship in their lifetimes. For as many as 30 percent of these
women, the violence will be regular and ongoing.4

In 1999, more than 52,000 petitions requesting
protection from abuse were filed pursuant to the
PFA Act in Pennsylvania courts. Data from the
major domestic violence advocacy groups throughout
Pennsylvania show that more than 95 percent of those
cases were filed by women.
The Pennsylvania Legislature responded to the risk of domestic violence
by enacting the Protection From Abuse Act (PFA Act) in 1976,5 which
provides a comprehensive framework for addressing the needs of
survivors.6 In 1999, more than 52,000 petitions requesting protection from
abuse were filed pursuant to the PFA Act in Pennsylvania courts. Data from
the major domestic violence advocacy groups throughout Pennsylvania
show that more than 95 percent of those cases were filed by women.7

Focus of the Inquiry
This chapter focuses upon the experiences of domestic violence survivors
within the justice system. Specifically, the Committee reviewed the
implementation and enforcement of the PFA Act, seeking to determine
whether current practice has upheld the PFA Act’s stated purpose: the
protection of survivors of domestic violence from the perpetrators of such
abuse.8

DOMESTIC VIOLENCE

The Committee focused its inquiry on the following issues:
•

Whether persons involved with the adjudication of domestic violence
cases understand the unique circumstances and particular problems raised
by domestic violence, in contrast with other forms of violence;

•

The ability of the court system as presently structured to accommodate
domestic violence cases within the system;

•

The implementation of appropriate and effective remedies by the courts;
and

•

The enforcement of those remedies when protective orders are violated.

Methodology
In the course of its research, the Committee examined task force reports
from other states, professional treatises, and other articles on the issue of
domestic violence. It also reviewed domestic violence statistics for the
nation and for Pennsylvania. Further, the Committee made a concerted
effort to understand the experience of survivors of domestic violence as
they proceed through the court system. Roundtable discussions were held
in Pittsburgh, Philadelphia, and Harrisburg, with racially and culturally
diverse groups of seven to 12 battered women in each session. The
Committee also sought expert testimony on the issue of domestic violence.
At its public hearings the Committee heard testimony from administrators
of domestic violence programs; domestic violence counselors, advocates,
and professionals; and survivors of domestic violence.

387

DOMESTIC VIOLENCE

SYNOPSIS OF FINDINGS AND
RECOMMENDATIONS

388

Gender is at the core of many domestic violence issues. Women are
traditionally the recipients of violence at the hands of their intimate
partners. If the judicial system is to understand domestic violence as
something more than a criminal assault case, it must first examine
and understand the nature of domestic violence and how the intimate
relationship between the abuser and the survivor gives rise to a unique
dynamic that distinguishes domestic violence from other crimes. Without
this understanding, courts may be less likely to accept survivors’ assertions,
which, in turn, may bring rejection of their PFA petitions, thereby
jeopardizing their safety.
The danger may be exacerbated for racial and ethnic minorities, who
are often perceived as less credible than their white counterparts. Further,
differing cultural attitudes towards the abuse of women and children may
make women from particular ethnic backgrounds even more ambivalent
about seeking protection. Our legal system, which strives to guarantee
safety to all, must understand these cultural differences if it is to attain
the goal of the PFA Act, which is to prevent future acts of intimate partner
violence.
Pennsylvania currently has no statewide system in place for processing
domestic violence cases, and court personnel are often inadequately trained
to understand the needs of domestic violence survivors. Many counties
have no family court systems and no persons specifically responsible for
these cases. This results in uneven and often inadequate procedures for the
disposition of domestic violence cases.
Implementation and enforcement of the PFA Act is left to the discretion
of individual judges. If a judge is not sensitive to the dynamics of domestic
violence, a survivor’s petition is more likely to be met with skepticism or to
be dismissed. When a petition goes forward, petitioners are often hurried
through a judicial system already backlogged by other cases. Moreover, the
full measure of remedies available under the PFA Act is not consistently
granted. Some judges, for example, have been reluctant to take away an
abuser’s weapons. Courts have fashioned makeshift remedies, such as
mutual no-abuse orders, which do not ensure the safety of the survivor.

DOMESTIC VIOLENCE

Although the PFA Act provides relief in the form of child custody and
financial support, these remedies are often not utilized in an appropriate
fashion. A final order is rendered useless when a court fails to provide
meaningful and effective enforcement.
In order to achieve the goals of the PFA Act, and to secure the safety of
Pennsylvania families, domestic violence complaints must be treated with
respect and given due regard by the legal system. Lancaster, Allegheny, and
Philadelphia counties have designed systems that are noteworthy for their
efforts to respond to the needs of survivors of domestic violence. While
these programs represent a significant improvement over past practices,
more can be done to establish a system in which justice is expeditiously
and effectively dispensed to all survivors of domestic violence. Descriptions
of the three noteworthy programs are set forth later in this chapter. This
report concludes with additional recommendations to ensure that the stated
purposes of the PFA Act are met throughout Pennsylvania, and that all
citizens have access to those services.

389

DOMESTIC VIOLENCE

GENERAL FINDINGS
Domestic violence is distinguishable from other
violent crimes, and the courts must understand and
address it within this context.

390

Domestic violence occurs against a backdrop of emotional, physical,
biological, familial, residential, and financial ties between the abuser and
the abused. Criminal law, which contemplates violence between persons
who are not usually intimate partners, is often ill-equipped to address the
multiple problems raised when there is violence between intimate partners.
In the roundtable discussions held with survivors of domestic abuse, many
reported that the judges before whom they appeared did not seem to
understand domestic violence issues. These survivors found their courtroom
experiences to be demeaning.9 According to survivors, when judges fail to
understand the causes and consequences of domestic abuse and do not treat
it seriously, the abusers, in effect, are granted permission to continue the
abuse without fear of penalty.
Domestic violence experts have concluded that perpetrators of domestic
violence seek power and control over their survivors. Women who are
survivors of domestic violence have often been abused over an extended
period. The abuse generally escalates; it often includes repeated emotional
mistreatment, coupled with a range of physically violent acts used by the
perpetrator to gain emotional and physical power and control over the
survivor.10
Abusers do not generally act out of sudden anger; their violence is often
calculated and deliberate and often includes psychological intimidation,
coercion, and threats. “Most of the perpetrators I’ve dealt with did not
have a problem with anger management,” said attorney Lorraine Bittner,
the legal systems advocate from the Women’s Center and Shelter of Greater
Pittsburgh, at the Pittsburgh hearing. “It was power and control issues. For
example, if he wants to make a point in the middle of a mall, he waits until
they are in the car in the parking lot. Then he punches her.”11
It is imperative that legal personnel coming into contact with these
survivors realize that they are afraid, often for their lives. Fear of their
abuser can and does cause survivors to refrain from filing for protection,

DOMESTIC VIOLENCE

or to withdraw petitions after they have been filed. This can lead to
instances in which survivors, for example, plead with the court not to take
away their abusers’ guns. Caren Bloom, an attorney with Mid-Penn Legal
Services in Centre County, speaking at the public hearing in State College,
explained: “It sounds like they’re not afraid, or they wouldn’t agree he
should keep his guns. But many times, my client says to me, ‘If I take his
guns, he will kill me.’”12
Another reason women either fail to come forward, or withdraw cases after
the initial filing, is that abusers often threaten to harm their children or
withhold access to them. Women also withdraw cases because they have
insufficient financial resources to press forward, especially when the course
of action will necessitate the filing of custody, divorce, or support papers.
Some women refuse to come forward or withdraw their legal actions out
of a concern that the abuser will be inordinately harmed by the judicial
system. In immigrant populations, women fear that pursuing an abuse
action will result in the deportation of the abuser. When domestic abuse
survivors seek protection, they often are not willing to proceed with the
case if it compromises the legal status of the abuser. This is especially true
if he is also the father of their children.13
African American women often have concerns in this area. Their mistrust
of the legal system may lead them to fear for the physical well-being of
their abuser if he is arrested. As Judy Ariola-Rivera, bilingual and bicultural
domestic violence counselor for Women’s Resources of Monroe County,
said at the Wilkes-Barre hearing: “African American women fear the police
retaliating against their partner because they [the partner] will be treated
differently. And so the fear is not only for their own lives, but also that
their spouses or partners would be injured or treated differently than a
Caucasian male.”14
Many batterers develop a long-term pattern of insults, belittling statements,
threats, intimidation, and physical violence to “brainwash” the survivor
into believing that she deserves or has caused the abuse, and that she is
inadequate and has no choice but to continue in the relationship.15 Survivors
are often ashamed that they are abused, and this shame creates a reluctance
to discuss their abuse, even when such a discussion could lead to assistance.
Shame can lead survivors to downplay or deny the existence of the violent
relationship, making it all the more difficult for the courts to determine what
has actually occurred. In order for courts to identify such abuse, they need to
set aside sufficient time to hear the evidence. In addition, courts should
ensure that survivors have the time to secure legal representation.

391

DOMESTIC VIOLENCE

Mostly, though, it is important to understand that the survivors are afraid.
“He will ultimately get me no matter what,” said one survivor during a
roundtable discussion. Another said, “Oh, he’ll get me. I’ve written my
will. Nothing will stop him. If it’s not next week, it will be next month.
I never go anyplace without constantly looking over my shoulder.” A third
survivor explained, “He’s a deputy sheriff. I’m petrified of him. The police
came one time and exchanged badge numbers with him.” Yet another said,
“I know he’s going to kill me. It’s just a question of when.”16

392

If a survivor does not obtain protection through the
legal system, her abuser may feel more empowered to
continue the pattern of abuse or even to intensify it.
Survivors live in the same culture and community where their batterers
reside. Consequently, courts must understand how culture and community
may contribute to a batterer’s control over a survivor. In some cultures it is
still considered acceptable by some members of the community for men to
exercise physical authority over women. Attorneys and advocates who
counsel Latina women, for example, report that the women may not only
be afraid of the men, but of what others will think of them if they come
forward with stories of abuse.17
Persons who are not in abusive relationships often fail to understand the
impact that a history of abuse has upon the survivor. Law enforcement
officials, judges, and attorneys in domestic violence cases may not only fail
to perceive the life-threatening danger in which a survivor finds herself, but
may also have a mistaken understanding of the consequences if the legal
system fails to act to protect her. If a survivor does not obtain protection
through the legal system, her abuser may feel more empowered to continue
the pattern of abuse or even to intensify it. For survivors to be afforded
the full remedy of the law, it is essential that people in the legal system
understand the likely behavior of the survivor as she faces issues raised
by the abuse.
There are no uniform procedures for handling
PFA cases

Of the approximately 52,000 PFA petitions filed in Pennsylvania in 1999
and again in 2000, more than 13,000 were filed in Philadelphia. In
Allegheny County, approximately 4,000 cases are filed each year. The
courts in these two counties have family divisions that have established
specific procedures to ensure that domestic violence cases proceed in an
orderly fashion through the judicial system.18

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Other Pennsylvania counties employ a variety of approaches in the
processing of domestic violence cases. With no uniform statewide systems
or guidelines in place, advocates, attorneys, and survivors often find that
the existing systems are inadequate.

A system that devotes little time and resources to
domestic violence cases sends a message that it is
indifferent to the needs of domestic violence survivors,
many of whom, as discussed above, are all too willing
to believe they do not deserve protection, and all too
likely to abandon their cases for the least excuse.
Even in counties devoting significant resources to domestic violence cases,
survivors are confronted by an overworked and understaffed legal system
that does not process these cases with the respect and courtesy given to
other civil, criminal, and domestic actions. The failings of the system also
stem from a misunderstanding of the importance of abuse cases and of the
urgency of protecting the survivors.
At the Philadelphia public hearing, Iraida Afanador, associate executive
director of The Lighthouse, observed, “Victims are being herded in like
cattle and not really being looked at as individuals.”19 Another witness at
the same hearing reported lengthy delays, multiple continuances, and short
hearings often lasting only five minutes.20 In Harrisburg, legal advocates
noted that the judges were overburdened, and appeared to be squeezing
PFA cases into their already crowded schedules. Similarly, at the hearing
in State College, a witness testified that a judge in Centre County had a
practice of scheduling all PFA cases on one day per week at 11:45 a.m.,
with the expectation that they would be completed by the noon lunch hour.
She testified that not only did this practice create intense pressure on her
and other petitioners to settle within a short period of time, but it left
a strong impression that the court did not consider her case or those of
the other petitioners to be important. The particular judge in this case
subsequently modified his procedure for scheduling PFA hearings after
personally listening to the testimony of this witness during the Committee’s
public hearing in State College.

393

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394

The accounts by these witnesses demonstrate the serious effect the courts’
treatment of such cases has upon the petitioners. A system that devotes little
time and resources to domestic violence cases sends a message that it is
indifferent to the needs of domestic violence survivors, many of whom, as
discussed above, are all too willing to believe they do not deserve protection,
and all too likely to abandon their cases for the least excuse. Court-ordered
delays and continuances cause survivors to abort their legal actions, while
extremely brief hearings leave little time to address complex safety, custody,
and support issues. “I had to wait three months for my PFA hearing, then
18 months for a custody hearing,” a survivor said at one roundtable
discussion. “When the custody trial happened, the judge wouldn’t allow
any discussion of the history of the domestic violence in our family.”21 This
experience was shared by many survivors, suggesting that courts are unable
(or unwilling) to integrate domestic violence issues into other legal cases.
Often, courts also fail to address problems posed by the survivors’ scant
economic resources. Under these circumstances, the survivors are usually
compelled to proceed pro se, or to use advocates from legal services
agencies who are usually available only on a limited basis.22 When a
survivor files a pro se petition, observed Grace Coleman at the Pittsburgh
public hearing, “She is far less likely to artfully draft the petition in a
manner that clearly expresses a true sense of the danger she is in.” 23 The
survivor may have no understanding of ancillary legal issues. She may not
know, for example, that she is entitled to seek temporary financial support;
and later, she may not understand the consequences of failing to file for
permanent support.24
When survivors seek private counsel, their tight financial situation often
compels them to hire less-skilled attorneys with little knowledge of domestic
violence and its ancillary implications in family law. Indeed, many family law
attorneys fail to integrate domestic violence issues into their family law cases,
especially in custody matters. Even lawyers familiar with family law may not
be cognizant of the unique interplay between traditional domestic law and the
particulars of the PFA Act.25 In this regard, if lawyers miss important legal
issues, they have failed to provide competent representation.
As discussed in the first chapter of this report, few courts provide
interpreters for litigants with a poor grasp of English. In the area of
domestic abuse, interpreters can be extremely important, especially if they
are trained in domestic violence issues and sensitized to the cultural barriers

DOMESTIC VIOLENCE

experienced by minorities. Advocates report that non-English speaking
survivors risk having their statements misconstrued when they work with
untrained interpreters.26 “Sometimes their victimization was not actually
presented,” attorney Bloom reported at the State College hearing.27
Pennsylvania courts do not consistently permit non-attorney advocates to
accompany survivors to all court proceedings. While lawyers primarily deal
with legal issues, domestic violence advocates focus on the entire spectrum
of issues confronting the survivor.28 Advocates work with survivors to
consider lethal risks and plan safe courses of action when an incident
begins. Advocates speak out for and with the survivor as she proceeds
through the court system. Advocates direct survivors to housing agencies,
shelters, support groups, day care centers, and job training programs. In
short, advocates help survivors take advantage of all available resources.
Advocates also help survivors make safe, independent decisions concerning
their welfare and the welfare of their children.
Advocates are especially important in minority and ethnically diverse
communities where, as discussed previously, survivors are often reluctant
to bring their full plight to the attention of the court system. Members of
minority communities often fear that they will not be believed by the court
simply because of their racial or ethnic background,29 or that they will not
have opportunities to present their cases.
Many Pennsylvania counties have small minority populations that feel
isolated and believe that they are surrounded by people who do not
understand their culture or way of life. Deborah Donahue, executive
director of Domestic Violence Services of Cumberland and Perry Counties,
speaking at the Harrisburg hearing, cited the example of Cumberland and
Perry counties, where members of the small African American communities
believe the lack of understanding means they will not receive justice.30
Conversely, minority group members may fear that, if they are believed,
their abusers, with whom they often still share emotional, familial, and
other bonds, will be over-prosecuted or even physically harmed by law
enforcement officials.31 In some cultures, women and children are still
viewed as a man’s property. Under these circumstances, survivors are often
reluctant to report abuse. Without strong advocacy and support, they may
be unable or unwilling to take the necessary steps to protect themselves and
their children.32

395

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396

Other cultural misconceptions create additional barriers for survivors who
seek protection. For example, Beata Peck Little, executive director of the
Women’s Resource Center in Monroe County, testified in Wilkes-Barre
about a Latino woman who was married to an abusive man. She felt
compelled by her religious faith and cultural background to do everything
she could to save the marriage, even though her husband abused her
physically, mentally, and sexually. “She was told by the court and the
attorneys that she was manipulating the system, lying and pretending not
to speak well,” Little said.33 The court denied her PFA petition because she
admitted to having sex with her husband, even though she believed it was
her duty, and her husband had threatened her with loss of her children if
she refused. Little went on to explain that minorities share a knowledge
“that almost everyone you have to share your story with is Caucasian and
knows little about the cultural aspects of your life, how you interact and
communicate with others, or the social mores which govern your behavior.
Add in also the fact that domestic and sexual violence are rooted in issues
of power and control and you can begin to see the difficulties faced by
people of color who need assistance.”34 As a result, many survivors without
strong advocates do not seek assistance at all. By coming to the court
system for help, survivors risk their privacy. They risk further and
potentially lethal abuse. They risk losing their children. They risk losing
their voice or access to justice when interpreters are not available.
Courts fail to grant survivors credibility

Attaining credibility in the court system is one of the greatest challenges
for all survivors of domestic violence. Courts may question a survivor’s
credibility for a variety of reasons. One reason may be a survivor’s delay
in reporting the abuse, seeking a PFA order, or withdrawing a previous
petition. In the eyes of the court or a jury, such behavior may be interpreted
as evidence that a survivor acquiesced to the abuse, or that the abuse was
not as serious as the survivor now claims it to be. Such misconceptions
stem from a failure to understand the dynamics of the domestic violence
relationship. Courts may assume that if the violence were intolerable, the
survivor would have left her abuser long ago. That line of thinking fails to
take into account the now well-documented internal and external forces
that may keep a survivor tied to her abuser.35

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Another issue that complicates the court’s ability to view the survivor’s
narrative as credible is the tendency of survivors to revise their accounts
of abuse, generally by supplying greater detail. “Revised stories present
problems in the law because one of the implicit rules judges and juries
use for finding stories to be true is, to be believable, stories must be told
immediately and must stay the same over time,” Kim Lane Scheppele writes
in her article on the subject, Just the Facts, Ma’am: Sexualized Violence,
Evidentiary Habits, and the Revision of the Truth. 36 Survivors of domestic
violence are believed to exhibit signs of post-traumatic stress disorder as a
consequence of their traumatic experiences with abuse. To maintain her
safety, a survivor may at first feel compelled to withhold information, or
may blame herself, thereby accepting the abuser’s distorted version of
events. As a survivor begins to gain a sense of safety or emotional distance
from the trauma, she may then be able to divulge the facts in a more
expansive and legally coherent manner.

Courts may assume that if the violence were
intolerable, the survivor would have left her abuser
long ago. That line of thinking fails to take into
account the now well-documented internal and
external forces that may keep a survivor tied to her
abuser.
Whatever the reason, the court’s dismissal of abuse cases can set the stage
for increased violence within the coming months and years. In one case in
Eastern Pennsylvania, for example, a woman was denied a final order
after she stated that her husband had assaulted her and had frightened the
children by destroying some of their toys. The judge asked her lawyer if
the woman really wanted the court to “kick the breadwinner out of the
house,” and dismissed the case. After the survivor filed a second PFA, the
judge again denied her petition and warned the woman not to re-file. A few
months later, the husband burned down the woman’s house.37
Advocates for survivors of domestic violence assert that multiple filings and
withdrawals of PFA petitions should send to the court a clear signal of a
long-standing pattern of abuse.38 When survivors persevere and seek longterm protection, their lack of medical records, broken English, or tattered
clothing should not be a bar to the court’s granting of relief. All too often,
a failure to grant immediate relief has lethal consequences. At the Pittsburgh
hearing, for example, Bittner told about a woman who alleged abuse by her
husband, even though her injury had not required medical attention. Her
petition was denied. Months later, the husband murdered her.39

397

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398

In Philadelphia, Afanador observed that the legal system sometimes tends
to “evaluate people almost exclusively by their verbal skills and their ability
to articulate white middle-class values.”40 Courts that fail to recognize the
cultural practices of ethnic groups will sometimes dismiss the credibility of
witnesses who behave in a way that is culturally or ethnically appropriate.
A domestic relations lawyer, for example, questioned a Latino woman
about why she continued to sleep with the man who abused her. She
responded by saying that if she behaved otherwise, the man would take
her children. Clearly doubting her, the lawyer told her that she dressed
flamboyantly and said, “I understand that the women from your country
are accustomed to being sexually aggressive and flamboyant.”41 The
woman was from Puerto Rico. This lawyer found her less than credible
because he misunderstood the cultural meaning of her clothes and behavior.
Racial or ethnic discrimination toward a survivor can also discourage a
court from imposing sanctions upon an abuser. Stereotypical thinking
about a survivor’s background, in other words, may render the court less
likely to view her case in an objective manner.
Courts have also raised credibility issues about males alleging domestic
violence. Many people scoff, for example, at the very idea of a man seeking
protection under the domestic violence statute. Yet, most of the advocacy
groups in Pennsylvania readily acknowledge that the problem exists for
men and that they have represented men in domestic abuse cases.42
Credibility issues may also affect the outcome of same-sex allegations of
abuse.43 People who believe that same-sex partnerships are immoral may
also conclude that no protection is warranted for persons engaged in such a
relationship. At one of the roundtable discussions, a survivor in a same-sex
relationship said that the court had not protected her from abuse by a male
relative, apparently because of the court’s belief that her relationship was
immoral.44
Pennsylvania courts should develop and fashion
orders that provide adequate remedies for all legal
issues confronting domestic abuse survivors.

After determining that a petitioner’s assertions are credible and they meet
the requirements of the PFA Act, a court in Pennsylvania must issue an
appropriate order, the paramount goal of which is to protect the survivor
and, if necessary, her children. When a court repeatedly delays final

DOMESTIC VIOLENCE

hearings or schedules them at inconvenient hours, the court’s orders do not
immediately or adequately protect the person who has suffered abuse.
From 1990–1998, guns were responsible for 67 percent of all spouse and
ex-spouse homicides in the United States.45 In light of the long-standing
danger, Pennsylvania’s PFA Act and, more recently, the Domestic Violence
Firearm Protection Amendment to the Federal Gun Control Act, passed in
1996,46 prohibit PFA defendants from possessing or acquiring firearms
while the protective order is in effect.47 The Pennsylvania Supreme Court
has made it simple to comply with the law. A court has only to check a box
indicating “no guns” on the final standardized PFA order.

“Judges have said…I’m not sure how strong your
client’s testimony was, and I have to weigh that
against—it’s November.”
—Attorney Caren Bloom

Yet many believe that courts, especially in central Pennsylvania, are
reluctant to hold final hearings or implement final PFA orders because they
are unwilling to remove abusers’ guns, especially during hunting season.
Attorney Bloom, testifying at the State College hearing, said, “Judges have
said…I’m not sure how strong your client’s testimony was, and I have to
weigh that against—it’s November.”48 Other judges have been reluctant
to take guns away from defendants who were police officers or were
otherwise licensed to carry firearms through their employment.49 In such
situations, the courts appear to be upholding the right to bear arms without
adequately weighing the clear and present danger to survivors of abuse.
Many courts pressure both the petitioner and the defendant to enter into
consent orders prohibiting abuse by either litigant. The rationale for this
approach may be to placate or cajole the abuser into signing a consent
order, thereby avoiding an actual trial on the issue of abuse. Sometimes the
survivor is told her case is not strong enough and that she has nothing to
lose in signing a mutual order because she will never abuse the perpetrator.
After all, the argument goes, she comes away with exactly what she
sought—an order prohibiting abuse.

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400

The rationale for mutual PFA orders, however, fails to address an inherent
problem. Unless there is actual evidence of the survivor acting as the
initiator of violence, a mutual order grants the perpetrator a victory and
does nothing to diminish his power and control over the survivor. It is a
victory for a variety of reasons. First, the order implies that the survivor’s
allegations were not sufficiently believable to warrant a final order directed
solely at the perpetrator. Second, the perpetrator can use this order as
leverage against the survivor in a future retaliatory action by claiming she
violated the order. Third, the survivor, having entered the legal system as
a result of the perpetrator’s physically violent exercise of control, may
perceive that she leaves the system with the court’s continued endorsement
of his power. An order against the survivor emerges as an officially
sanctioned consequence of the initial abuse.

The PFA Act grants courts the power to fashion
temporary support orders for the economically
dependent spouse and/or children. But some courts fail
to enter these support awards into their final order.
This failure often creates a dangerous dilemma for the
financially dependent survivor.
Courts often impose orders requiring joint counseling in domestic abuse
cases, in what could be viewed as a well-meaning but often misguided
attempt to provide appropriate social services to the parties. Researchers
have concluded, however, that joint counseling can actually be harmful
to the survivor.50 This type of therapy may place her in danger of further
abuse or retaliation. Further, when survivors are forced into joint
counseling, they are stripped of the right to make independent choices
about how to become and remain safe. 51 Yet, when they object, the court
too often views them as obstructive and questions their credibility.52
The PFA Act grants courts the power to fashion temporary support orders
for the economically dependent spouse and/or children. But some courts fail
to enter these support awards into their final order.53 This failure often
creates a dangerous dilemma for the financially dependent survivor. If she is
not awarded immediate support, she may be forced to return to an unsafe
home where she is in danger of being abused. On the other hand, if she stays
out of the home, she may have no money and nowhere to go. If the court
grants a temporary support order but neglects to advise the survivor about
how, where, and when to file a complaint for permanent support, then the
court has merely delayed the survivor’s dilemma for two weeks.54

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Cases involving custody of minor children are another area in which courts
often fail to grant appropriate or full relief. “A battered woman’s ability
to secure safety for herself and her children often depends on her ability to
secure a custody order that provides conditions and protection for her and
her children,” Grace Coleman testified at the Pittsburgh hearing.55 The PFA
Act allows for the imposition of a custody order, and specifies that the
abuse of a parent (and, of course, a child) is a factor to be considered
in fashioning an appropriate order.56 In practice, however, a variety of
custody problems have arisen in the application of the Pennsylvania law.

401
First, the custody provisions in the order must address both the immediate
and long-term safety needs of the survivor in order to be effective. Protective
orders with custody provisions should be in place to provide for the safety of
the survivor and her children. They also promote her autonomy, something
batterers are loath to allow. The imposition of an inadequate custody order
can force the survivor into continuous, unsafe contact with the abuser.
Unless there has been actual violence perpetrated against the children,
however, the courts often dismiss the safety concerns and fashion the more
“typical’ custody order envisioned by the Child Custody Act, wherein
the parents have nearly equal contact with the children in completely
unsupervised circumstances. “It’s rare that the judges will even consider
abuse once we get to the custody part of the case,”57 Bloom said at the State
College hearing.
In addition, courts often fail to consider the impact upon the child of
continued unsupervised contact with the abuser. According to an American
Psychological Association task force, between 40 and 60 percent of men who
abuse women have also been found to abuse children, although the abuse
may not occur simultaneously.58 Courts also fail to consider the serious
psychological harm done to the children, whether they are battered
themselves or are witnesses to battering. In such cases, the abuse and control
permeates the family life. Children who witness domestic violence show
symptoms similar to children who have been abused. They may become
fearful, anxious, aggressive, or depressed. They may develop less empathy
and self-esteem than children who do not witness violence in the home; and
they may also have lower verbal, cognitive, and motor abilities.59 These
effects may be long-term and may lead to violent acts by the children
themselves.

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Several courts view the request for a custody order as a clear indication
that the petitioner’s motivation for filing a PFA petition is to obtain a
quick, favorable custody award.60 When the court believes this, the PFA
petition is generally denied in its entirety, rendering the petitioner
completely without protection.

402

One woman separated from her husband because he was verbally abusive.
When the man wanted to see his 3-month-old child, they all met in public
places for the exchange. One day the mother was late. When she arrived,
her husband flew into a rage, grabbed the baby out of the car seat in the
mother’s car, threw the baby onto the front seat of his truck and sped away.
He had no car seat. The mother filed a PFA petition. The court refused to
grant an order, saying it was really a custody case. The mother “was
devastated. She had turned to the courts for protection and assistance;
protection that she did not receive. She knew her baby was…at risk.”61
While some courts are all too willing to challenge the domestic abuse
survivor’s motivations for filing a PFA petition, they often fail to question
the abuser’s motive for requesting substantial custody. Research indicates
that custody disputes are more frequent when there is a history of domestic
violence. Moreover, fathers who are batterers are twice as likely to seek sole
custody of their children.62 Such requests for substantial custody may be a
misuse of the legal system, motivated by the batterer’s continuing need to
control and abuse the mother through harassment and retaliatory legal
action. Fathers in such cases may use children as an excuse to have contact
with the women they are otherwise prohibited from seeing. Yet, if mothers
seek to protect themselves and their children by moving frequently or
seeking to limit the father’s contact, the courts may view the mothers as
unstable, uncooperative, and unwilling to share access to their children, all
in contravention of Pennsylvania’s Custody Act. In this regard, a mother’s
acts of self-protection may also harm her case within the confines of the
PFA Act by raising doubts about her credibility and stability.
When a PFA order is violated, the court should take
immediate steps to enforce its order.

Consistent and meaningful enforcement of PFA orders is a vital element
in protecting domestic violence survivors and their children, and in
maintaining public confidence in the judicial system. Orders that are not
properly and consistently enforced simply become meaningless pieces of
paper, sending a strong message to both survivors and abusers that crimes

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resulting from domestic violence are given little priority by the judiciary
and the legal system. Enforcement should not be dependent upon the
number or severity of bruises inflicted upon the survivor. The continued
safety of the survivor should be the paramount concern. Deborah Donahue,
speaking in Harrisburg, recalled a man who was arrested for violation of
his PFA order. Because he had done nothing more than issue threats, he was
released on his own recognizance prior to the contempt hearing. Two days
later, he broke into the house where the survivor was staying. He shot and
killed her, and then himself.63

403
Even when failure to enforce orders effectively does not lead to such a
tragic consequence, the judicial system should ensure that all parties
coming before the bench are respected, as well as protected, to the full
measure of the law.
In another instance, a man was arrested for violation of his PFA order after
he vandalized his wife’s car and “threatened to do to her what O.J. did to
Nicole.” He was released on his own recognizance pending the contempt
hearing, although the judge promised to jail him for another violation of
the order. Within three days, and in violation of the order, the man called
his wife again and was arrested. A contempt hearing was held two days
later. At the hearing, the judge told the defendant that he understood his
Italian temper, because he also was Italian. They laughed and joked
together, in Italian. The sentence imposed by the judge was time served
and supervised probation. The petitioner was shocked, not just by the
mere slap on the wrist, but by the friendly exchange between the judge
and her husband. “Now the PFA seemed like a piece of paper that had
no meaning.” 64
Some courts are especially reluctant to enforce orders against defendants
who are law enforcement officers or other powerful members of a
community. But regardless of the identity or profession of the perpetrator,
judges must be cognizant of, and willing to utilize, all available remedies.
These include criminal sanctions, seizure of weapons, bond posting and
incarceration. Judges must remember that the purpose of the PFA Act is
to ensure the safety of the survivor. As Sharon Lopez, senior attorney,
Pennsylvania Coalition Against Domestic Violence, said at the Harrisburg
hearing: “If judges issue orders that they refuse to enforce, then those
orders mean nothing.”65

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CONCLUSION

404

The purpose of the PFA Act is clear66—to protect victims of domestic abuse
through enforcement of provisions that enable courts to respond quickly
and flexibly to abuse by issuing appropriate protective orders.67 The mantle
of protection is meant to extend from early signs of abuse to repeated acts.
The PFA Act, however, has been implemented in uneven and sporadic
fashion, negating its stated purpose of keeping survivors safe. Behind the
uneven implementation is a systemic failure to understand the nature of
domestic abuse; to recognize its brutal effect upon survivors and their
children; to understand and appreciate ethnic and cultural contexts of
domestic violence; and to effectively carry out the goals of the PFA Act. The
practices outlined below, and the recommendations that follow, are
set forth to help ensure that the PFA Act’s mandate is carried forward
throughout the Commonwealth.

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OTHER TASK FORCE FINDINGS
Each state has its own criminal and/or civil statutes addressing domestic
violence. Thus, task forces from other states report varied and unique
problems in implementing and enforcing their respective laws. Several
common concerns exist from state to state, however, many of which are
also raised and addressed within this chapter.
One common theme addressed by other reports was the detrimental “myths”
surrounding domestic abuse and the judicial system’s lack of understanding
of the nature of the crime. For example, the Gender Bias Task Force of Texas
found that, “In too many instances, domestic violence is viewed as less
serious than other criminal acts, the women’s experiences are minimized,
a victim’s credibility is questioned, and…women suffering from abuse may
even be blamed for causing the abuse.”68 The Gender Bias Study of the Court
System in Massachusetts discussed this failure to understand the nature of
the crime and the psychological profiles of the abuser and the survivor, in
light of the effect on legal outcomes, noting, “The tendency to doubt the
testimony of domestic violence victims and to ‘blame’ them for their
predicament not only hampers the court’s ability to provide victims with
the protection they deserve, it also has a chilling effect on victims’ willingness
to seek relief.”69 Similarly, the Michigan Task Force on Domestic Violence
called for extensive training and educational programs to dispel erroneous
understanding of the profiles of abusers and survivors.
Several task forces have addressed the unique problems of minority and
ethnic communities. The Massachusetts study and the New Jersey Supreme
Court Task Force on Women in the Courts both found that racial, ethnic,
and sexual preference biases were obstacles to seeking and receiving justice
for survivors of domestic violence. Both the Massachusetts study and the
final report of the California Judicial Council Advisory Committee on
Racial and Ethnic Bias in the Courts, for example, discussed the need for
interpreters. The California and Massachusetts reports also expounded
upon the harm engendered by racial stereotypes—especially stereotypes
that characterize minority communities as inherently violent, which fosters
tacit judicial acceptance of violent relationships within that community.
The California study found that, “Inevitably, judges appeared to believe
that in the African American community, violence was much more
acceptable ‘culturally’ and, therefore, there was not the same seriousness
paid to the testimony of African American women.”70 The Massachusetts
report went on to conclude, “Such stereotypes serve to minimize and
condone violence that would not be tolerated among strangers or
acquaintances who are white.”71

405

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Several task force reports have identified problems caused by inadequate
procedures and facilities for the processing of domestic violence cases. While
each state had its own particular shortcomings in this area, many reported
conditions similar to those found in Pennsylvania:

406

•

The Texas task force noted that even relatively wealthy survivors often
had difficulty obtaining legal counsel.

•

The Massachusetts study called for increasing access for survivors to legal
counsel and domestic violence advocates.

•

The Report of the New York Task Force on Women in the Courts noted
that many courthouses had no safe areas for the processing of cases.

•

The Washington State Task Force on Gender and Justice in the Courts
called for simplified user-friendly complaint forms that were better suited
to pro se litigants.

•

The New Jersey task force reported that many court calendars were too
crowded, and that judges did not have ample time to hear and
appropriately address all issues within each case.

•

Michigan’s task force noted that prosecuting attorneys in some
jurisdictions had insufficient time to prosecute all appropriate cases.
The task force also recommended the establishment of special
prosecution units for domestic violence.

Several states also found that court orders sometimes failed to address all
appropriate issues or to fashion appropriate remedies. The Massachusetts
and New Jersey studies found that some courts failed to order spousal or
child support, while the Washington, New York, and Michigan studies
found that that some courts awarded custody to fathers who were abusers,
or failed to ensure abused mothers’ safety by providing supervised
visitation between the abuser and the children.72 Further, several task force
reports, including Massachusetts, Michigan, and Washington, decried the
use of mutual protection orders. In Texas, 82 percent of female lawyers and
80 percent of male lawyers confirmed that judges sometimes issued orders
that “in effect, place some of the blame for the crime on the victim.”73
Similarly, the New York, Washington, New Jersey, Massachusetts,
California, and Texas task forces found it inappropriate to order mediation
or joint counseling for batterers and their victims. The New York task force
concluded that mediation “ignores the legitimate fear of the battered
woman…trivializes her victimization and disregards that the empowerment
of the two parties is disproportional.”74

DOMESTIC VIOLENCE

The lack of uniform, consistent enforcement of orders was another
common theme in the state task force reports. The New Jersey study
reported that each judge appeared to have his or her own method of
enforcing, or not enforcing, orders. In Washington, which prides itself on
having two of the toughest criminal and civil domestic violence statutes in
the country, the state task force found fault with both law enforcement and
the courts. The California report noted that calling the police did not
guarantee that the protective order would be enforced.
The Massachusetts study similarly decried the lack of consistent,
meaningful enforcement of protective orders, noting, “The imposition of
sanctions for violations of protective orders and criminal penalties for
abusive behavior can significantly alter behavior and enhance compliance
with orders. Failure to use available sanctions and criminal penalties
undermines the efficacy of orders for protection and weakens the response
of the legal system to domestic violence.”75

407

DOMESTIC VIOLENCE

BEST PRACTICES
LANCASTER COUNTY
Lancaster County has implemented a countywide program for the filing
and processing of PFA petitions, providing survivors with safe and efficient
access to the judicial system. The County Court of Common Pleas has
established the following procedural safeguards for petitioners:

408

•

A building-wide security system in the courthouse;

•

Security personnel in the courtrooms and hallways; and

•

A separate, private area in which to prepare legal pleadings.

The court also maintains an efficient system for adjudicating domestic
violence cases. Built into the system is continued oversight of the case
by the court, guaranteeing judges access to all necessary information to
facilitate the best possible remedies for each particular case. This system
includes:
•

The assignment of each case to one judge who then is responsible for all
additional proceedings involving that family;

•

Guidelines that prohibit unnecessary continuances;

•

The provision of interpreters for non-English speaking litigants; and

•

Access to experienced legal counsel for litigants through MidPenn Legal
Services and the Domestic Violence Legal Clinic. The latter is a program
of the Lancaster Shelter for Abused Women.

To maintain the safety of domestic violence survivors, the courts in
Lancaster County coordinate efforts with other agencies. Representatives
from the court and its administrative division meet regularly with domestic
violence advocates and litigants to address ongoing concerns and issues.

PHILADELPHIA COUNTY
The Philadelphia County Court of Common Pleas operates a program
designed to assist survivors in the preparation of Protection from Abuse
petitions. The Domestic Violence Unit (DVU) is a pro se filing unit for
unrepresented survivors of domestic violence.

DOMESTIC VIOLENCE

Located in Philadelphia Family Court’s Domestic Relations Section, the
DVU is open from 8 a.m. to 5 p.m. Clients are interviewed on a first-come,
first-served basis. Client interviews are conducted in private offices and last
approximately 30 minutes. All information is entered into the computer
and becomes part of the petition. After the interview, the case interviewer
dockets the petition and schedules a court hearing to be held within
10 days. The petition is then sent for review to one of two judges assigned
full-time to hear domestic violence cases. The judge decides whether or
not a 10-day temporary protection order should be granted immediately.
Generally, the entire process takes approximately two hours to complete.
On that day, a petitioner can leave the court with a completed petition and
a temporary order.
For the past 12 years, this unit has filed the overwhelming majority of PFA
petitions in Philadelphia County, averaging 15,000 per year over the past
five years. The unit supervisor has been with the unit since it opened in
1990, and there are six case interviewers, three filing clerks and four
clerical workers.
By all accounts, this system has greatly benefited abused individuals filing for
PFA orders in Philadelphia County. Everyone who seeks assistance receives
individualized attention in a calming, caring environment from experienced
staff members who understand the trauma associated with domestic violence
and are recognized as well-versed in the laws and procedures in Philadelphia
County. Staff members periodically receive training in new developments
in domestic violence. The supervisor regularly participates in workshops
given for community groups, law enforcement officers, and others who are
interested in the workings of the domestic violence unit. Those who work
in the unit take great pride in the importance of the services they provide.

ALLEGHENY COUNTY
The Family Division of the Allegheny County Court of Common Pleas has
long recognized the special needs of domestic violence survivors. In 1993,
the division created an administrative attorney position (PFA coordinator)
to guide and oversee the division’s handling of PFA cases. Since then, the
Family Division has committed more and more resources to PFA matters
and now has a special PFA unit.

409

DOMESTIC VIOLENCE

410

The unit is headed by the PFA coordinator, who is a resource for law
enforcement officers, attorneys, and others in the justice system. The unit
also includes two domestic relations office-level positions, two clerks, and
one receptionist. A deputy sheriff is assigned each day to provide security in
the unit. Two senior judges of the Court of Common Pleas work with the
unit to hear all 10-day temporary order requests, as well as many of the
final hearings. Under the division’s “one judge, one family” practice, PFA
cases in which the parties are either married or have a child together are
scheduled for final hearings before a newly assigned Family Division judge
or the same Family Division judge who heard their case previously. In
addition, the unit handles PFA contempt hearings every Wednesday. In
2001, there were 4,082 PFA petition filings heard at temporary hearings.
In these cases, 3,131 temporary orders for relief were granted and final
hearings scheduled. In addition, there were approximately 1,000 contempt
cases scheduled for hearings before the unit’s senior judges.
The unit is located in the Family Courthouse, which has metal detectors
and security at each entrance. The newly renovated building—formerly the
Allegheny County Jail—was designed for safe and efficient case handling.
The space includes:
•

A receptionist check-in desk/area for domestic violence survivors who
walk in or have scheduled court appearances, with screening services by
the court receptionist to ascertain any court case history;

•

A large room for domestic violence survivors to complete pro se petitions
and to receive services from domestic violence program legal advocates.
The room also serves as a resource center for referrals to the domestic
violence units of the county district attorney’s office and the county
probation department, concerning related criminal matters or other
county services and resources;

•

A courtroom designated only for PFA matters;

•

A separate waiting room for PFA plaintiffs who are appearing for PFA
hearings;

•

A waiting area for PFA defendants that is physically separated from the
PFA plaintiffs’ waiting room;

•

A conference room where attorneys can meet parties they are
representing in PFA matters. The room is centrally located between the
plaintiffs’ waiting room and the defendants’ waiting area; and

•

Access to a children’s playroom in the same building where domestic
violence survivors can safely leave their children while attending PFA
proceedings.

DOMESTIC VIOLENCE

PFA petitions may be prepared in the PFA unit on any morning that the
Family Division is in session. The petitions are then heard the same day at a
1:00 p.m. preliminary hearing in the PFA courtroom before one of the PFA
senior judges. Any plaintiff can then sign up in court for a free attorney for
the final hearing, thanks to a legal services/pro bono collaboration. Final
hearings are scheduled each day at 9:00 a.m. in the PFA courtroom before a
PFA senior judge or the Family Division judge assigned to the parties. PFA
contempt cases are scheduled for 9:00 a.m. every Wednesday before the
unit’s senior judges. The district attorney’s office sends prosecutors from its
domestic violence unit to assist survivors in the contempt cases. The same
prosecutors coordinate the contempt cases with related matters
in the Criminal Division.

411

DOMESTIC VIOLENCE

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Require periodic training about domestic violence issues for persons
involved with domestic violence cases, including judges, district justices,
masters, court administrators, and other court personnel.76

412

2. Require the establishment of uniform statewide requirements for all
county courts concerning the processing of domestic violence cases. It is
recommended that these requirements include the following:
•

Establish a physically safe environment for survivors within each
courthouse where they can proceed with their legal actions free of
interference from the defendant;

•

Establish a simplified and accessible system for the filing of pro se
domestic violence complaints; and

•

Allot sufficient time and personnel on a weekly basis for the court of
each county to hear PFA petitions, establish temporary orders, and
hold final hearings and additional hearings, as necessary, concerning
violations of previous orders.

3. Direct all courts in the Commonwealth with jurisdiction to hear cases
filed pursuant to the PFA Act to adopt the following two policies:
•

Mediation should not be used to resolve any issue with respect to the
issuance of an order of protection, including custody, visitation, or
support issues, unless the petitioner is represented by counsel and
consents; and

•

Mutual protection orders should not be issued unless both parties
have filed a PFA petition and the court makes specific findings of
fact that each party against whom an order is issued has engaged in
behavior sought to be prevented by the PFA petition.

4. Direct the AOPC to collect and annually analyze statewide data
regarding the type of relief entered in final PFA orders, violations
of PFA orders as reported to or by police, and the types of criminal
resolution in PFA cases.

DOMESTIC VIOLENCE

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Modify Title 23 of the Pennsylvania Consolidated Statutes to permit
domestic violence advocates to accompany their clients to court in any
proceeding under that Title.
2. Review current Pennsylvania custody, child endangerment, child
protection, and domestic violence laws with consideration for the
survivor’s safety, and resolve any existing conflicts.
3. Conform Pennsylvania weapons laws with federal law, which prohibits
the acquisition or retention of weapons by perpetrators of abuse.
4. Authorize further study on the need for additional shelters, “safe”
visitation centers, additional advocacy organizations, and interpreter
services for non-English speaking litigants within each county, and,
if warranted, appropriate additional funds to meet those needs.
5. Appropriate funds for community education concerning domestic
violence.

TO LAW ENFORCEMENT AGENCIES
The Committee recommends that law enforcement agencies:
1. Provide appropriate training to all agents or officers concerning domestic
violence. The training should be similar to that provided to the judiciary
and court personnel set forth in Recommendations for the Supreme
Court, Number 1, of this chapter, but should also emphasize the critical
role played by law enforcement agencies in the enforcement of PFA
orders.
2. Develop and implement appropriate investigation procedures and
sanctions to address instances in which law enforcement officials are
personally involved in domestic violence crimes.

413

DOMESTIC VIOLENCE

TO BAR ASSOCIATIONS
The Committee recommends that county bar associations:
1. Establish committees to study, develop and maintain pro bono
programs that include the provision of legal services to PFA petitioners,
with appropriate training for attorneys representing domestic violence
survivors.

414

2. Review and comment on legislation affecting domestic violence
survivors and evaluate court procedures and practices that affect
domestic violence survivors.
3. Take an active role in ensuring that the topic of domestic violence is
appropriately integrated into continuing legal education courses.

TO COUNTY ADMINISTRATORS AND MANAGERS
The Committee recommends that county administrators and managers:
1. Establish domestic violence task forces that might include a
representative from that county’s law enforcement agency; civil,
criminal, and administrative representatives from the court system;
a representative from a domestic violence advocacy program; lawyers
knowledgeable about domestic violence; and concerned citizens. The
task forces should be responsible for assessing the status of enforcement
efforts, coordinating information by and among the respective agencies,
proposing and implementing training, and establishing procedures for
more streamlined and less burdensome processes for accessing the
judicial system.

DOMESTIC VIOLENCE

ENDNOTES
············································
1

Written Testimony of Patricia A. Dubin, director of Women Against Abuse Legal Center
(Philadelphia) p. 3 (2001), attached in Appendix Vol. III [hereinafter Dubin Written Testimony].

2

While the Committee recognizes that not all victims survive their ordeal, many victims and their
advocates prefer the term “survivor,” which connotes strength and perseverance, to the more
negative term “victim,” which is considered stigmatizing and suggests helplessness. Thus, the
Committee has chosen to use the term survivor in keeping with much of the current literature and
commentary on domestic violence.

3

Centers for Disease Control and Prevention, National Center for Injury Prevention and Control,
Intimate Partner Violence Fact Sheet, available at http://www.cdc.gov/ncipc/factsheets/ipvfacts.htm.

4

National Coalition Against Domestic Violence: http://www.ncadv.org.

5

23 Pa. Cons. Stat. Ann. § 6101, et seq.

6

Survivors of abuse may also file criminal charges against the perpetrators of these acts.

7

Ninety-five percent of Domestic Violence Services of Cumberland and Perry Counties’ clients are
women. See Testimony of Deborah Donahue, Harrisburg Public Hearing Transcript, p. 4
[hereinafter Donahue Testimony]. JoAnn Massaro, of the Domestic Abuse Project of Delaware
County, reported that 96 percent of her agency’s clients are women. See Written Testimony of Jo
Ann Massaro, attached in Appendix Vol. III and Testimony of Grace Coleman, Crisis Center North
Pittsburgh, Pittsburgh Public Hearing Transcript, p. 116 [hereinafter Coleman Testimony]. Over 95
percent of Philadelphia’s Women Against Abuse Legal Center’s clients are female. See Dubin
Written Testimony, supra at 4.

8

Lee v. Carney, 453 Pa. Super 405, 645 A.2d 1363 (1994).

9

Report of Focus Groups, Ann L. Begler, (Dec. 19, 2001), p. 89, attached in Appendix Vol. III
[hereinafter Begler Report].

10

Id. at 4.

11

Testimony of Lorraine Bittner, Pittsburgh Public Hearing Transcript, p. 97 [hereinafter Bittner
Testimony].

12

Testimony of Caren Bloom, State College Public Hearing Transcript, p. 164 [hereinafter Bloom
Testimony].

13

Testimony of Iraida Afanador, Philadelphia Public Hearing Transcript, p. 103 [hereinafter Afanador
Testimony].

14

Testimony of Judy Ariola-Rivera, Wilkes-Barre Public Hearing Transcript, p. 28 [hereinafter AriolaRivera Testimony].

15

Bittner Testimony, supra at 88–89.

16

Begler Report, supra at Appendix A.

17

Afanador Testimony, supra at 104.

18

Philadelphia’s system is set forth at length in the Best Practices section of this chapter.

19

Afanador Testimony, supra at 100.

20

Testimony of Terry Fromson, Philadelphia Public Hearing Transcript, p. 193.

21

Begler Report, supra at Appendix A.

22

Though all poverty law programs receiving state funding in Pennsylvania are mandated to provide
some form of representation to victims of domestic abuse, it is left to the individual programs to
fashion an appropriate system. The various legal services programs do not have adequate funding
or staffing to represent everyone who needs an attorney. Nor do they have the resources or staff to
provide interpreters, criminal legal counsel when appropriate, non-attorney advocates, or even
continued representation through custody, support and, when necessary, enforcement proceedings
for violations of PFA orders.

23

Coleman Testimony, supra at 124125.

415

DOMESTIC VIOLENCE

24

416

25

The PFA Act states that if a complaint for permanent support is not filed within two weeks of the
issuance of a temporary order, then that temporary order is void. See 23 Pa. Cons. Stat. Ann. §
6108(a)(5) as set forth below. After a hearing in accordance with Section 6107(a), directing the
defendant to pay financial support to those persons the defendant has a duty to support, requiring
the defendant, under Sections 4324 (relating to inclusion of medical support) and 4326 (relating to
mandatory inclusion of child medical support), to provide health coverage for the minor child and
spouse, directing the defendant to pay all of the unreimbursed medical expenses of a spouse or
minor child of the defendant to the provider or to the plaintiff when he or she has paid for the
medical treatment, and directing the defendant to make or continue to make rent or mortgage
payments on the residence of the plaintiff to the extent that the defendant has a duty to support the
plaintiff or other dependent household members. The support order shall be temporary, and any
beneficiary of the order must file a complaint for support under the provisions of Chapters 43
(relating to support matters generally) and 45 (relating to reciprocal enforcement of support orders)
within two weeks of the date of the issuance of the protection order. If a complaint for support is
not filed, that portion of the protection order requiring the defendant to pay support is void. When
there is a subsequent ruling on a complaint for support, the portion of the protection order
requiring the defendant to pay support expires.
For example, Pennsylvania’s custody statue (23 Pa. Cons. Stat. Ann. § 5310 et seq.) is commonly
interpreted to encourage each parent to have as much contact as possible with his or her child, but
the PFA Act (23 Pa. Cons. Stat. Ann. § 6108(a)(4)) acknowledges that violence between the parents
is a factor the court can consider in ordering limited contact. But a parent who denies the other
parent access to the child because of fear of abuse may be viewed as obstructing the goals of the
Custody Act.
There is also potential disparity between the PFA Act and Child Protective Services Act (23 Pa.
Cons. Stat. Ann. § 6301), which allows a court to remove children from a parent who hasn’t
protected that child from witnessing domestic violence in the home. This act thereby establishes the
possibility that a domestic violence survivor whose child witnesses the abuse could have the child
removed from her custody because she failed to protect him from witnessing the act. See 23 Pa.
Cons. Stat. Ann. § 6108(a)(4) set forth below:
The order or agreement may include:
(4) Awarding temporary custody of or establishing temporary visitation rights with regard to minor
children. A defendant shall not be granted custody, partial custody or unsupervised visitation where
it is alleged in the petition, and the court finds after a hearing under this chapter, that the defendant
abused the minor children of the parties or where the defendant has been convicted of violating 18
Pa. Cons. Stat. Ann. § 2904 (relating to interference with custody of children) within two calendar
years prior to the filing of the petition for protection order. When the court finds after a hearing
under this chapter that the defendant has inflicted serious abuse upon the plaintiff or a child, the
court may require supervised custodial access by a third party. The third party must agree to be
accountable to the court for supervision and must execute an affidavit of accountability. Where the
court finds after a hearing under this chapter the defendant has inflicted serious abuse upon the
plaintiff or a child, or poses a risk of abuse toward the plaintiff or a child, the court may award
supervised visitation in a secure visitation facility or may deny the defendant custodial access to a
child. If a plaintiff petitions for a temporary order under Section 6107(b) (relating to hearings) and
the defendant has partial, shared, or full custody of the minor children of the parties by order of
court or written agreement of the parties, the custody shall not be disturbed or changed unless the
court finds that the defendant is likely to inflict abuse upon the children or to remove the children
from the jurisdiction of the court prior to the hearing under Section 6107(a). Where the defendant
has forcibly or fraudulently removed any minor child from the care and custody of a plaintiff, the
court shall order the return of the child to the plaintiff unless the child would be endangered by
restoration to the plaintiff. Nothing in this paragraph shall bar either party from filing a petition for
custody under Chapter 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.
In order to prevent further abuse during periods of access to the plaintiff and child during the
exercise of custodial rights, the court shall consider, and may impose on a custody award,
conditions necessary to assure the safety of the plaintiff and minor children from abuse.

26

Bloom Testimony, supra at 164; Afanador Testimony, supra at 95.

DOMESTIC VIOLENCE

27

Bloom Testimony, supra at 164.

28

Testimony of Sharon Lopez, Harrisburg Public Hearing Transcript, pp. 17–18 [hereinafter Lopez
Testimony].

29

See Chapter 9 for a full discussion of this perception.

30

Donohue Testimony, supra at 11.

31

Ariola-Rivera Testimony, supra at 2.

32

Bloom Testimony, supra at 167; Afanador Testimony, supra at 104.

33

Testimony of Beata Peck Little, Wilkes-Barre Public Hearing Transcript, pp. at 16–17.

34

Id. at 14–15.

35

Begler Report, supra at 4, 8; Dubin Written Testimony, supra at 5–7.

36

Scheppele, Kim Lane, Just the Facts, Ma’am: Sexualized Violence, Evidentiary Habits, and the
Revision of the Truth, 37 New York Law School L.J. 123, 144 (1992).

37

Dubin Written Testimony, supra at 6.

38

Id. at p. 6.

39

Bittner Testimony, supra at 95–96.

40

Afanador Testimony, supra at.93.

41

Ariola-Rivera Testimony, supra at 40–41.

42

Women’s Center and Shelter of Greater Pittsburgh; The Lighthouse (Philadelphia); PA Coalition
Against Domestic Violence; and Women Against Abuse Legal Center (Philadelphia) all report
representation of men as survivors of domestic violence.

43

See Nancy Knauer, Same-Sex Domestic Violence: Claiming A Domestic Sphere While Risking
Negative Stereotypes, 8 Temp. L. Rev. Pol. & Civ. Rts. 325 (1999).

44

Begler Report, supra at 4.

45

U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends from 1976–1999 (2000);
available at http://www.ojp.usdoj.gov./bjs.

46

18 U.S.C. §922 (g)(h).

47

Additionally, Pennsylvania criminal law makes possession of a weapon in violation of a PFA order a
misdemeanor of the first degree. 18 Pa. Cons. Stat. Ann. § 6105(c)(6). See also the relevant section
of the PFA Act at 23 Pa. Cons. Stat. Ann. § 6108(a)(7) set forth below:
Ordering the defendant to temporarily relinquish to the sheriff the defendant’s weapons which have
been used or been threatened to be used in an incident of abuse against the plaintiff or the minor
children and prohibiting the defendant from acquiring or possessing any other weapons for the
duration of the order and requiring the defendant to relinquish to the sheriff any firearm license the
defendant may possess. The court’s order shall provide for the return of the weapons and any
firearm license to the defendant subject to any restrictions and conditions as the court shall deem
appropriate to protect the plaintiff or minor children from further abuse through the use of
weapons. A copy of the court’s order shall be transmitted to the chief or head of the police force or
police department of the municipality and to the sheriff of the county of which the defendant is a
resident.

48

Bloom Testimony, supra at 158.

49

Begler Report, supra at 9; Dubin Written Testimony, supra at 12–13.

50

Judicial Checklist, prepared by the Judicial Subcommittee of the ABA’s Commission on Domestic
Violence. See Dubin Written Testimony, supra at 13.

51

Lopez Testimony, supra at 17.

52

Bittner Testimony, supra at 93–96.

53

Dubin Written Testimony, supra at 11.

54

As discussed previously, the PFA Act mandates the expiration of the temporary award unless a
complaint for permanent support is filed within two weeks of the date of the final order.

417

DOMESTIC VIOLENCE

418

55

Coleman Testimony, supra at 116.

56

23 Pa. Cons. Stat. Ann. § 6108(a)(4)

57

Bloom Testimony, supra at 161–162.

58

American Psychological Association Presidential Task Force on Violence and the Family, Violence
and the Family 40 (1996) [hereinafter APA Report].

59

Susan Schechter and Jeffrey L. Edleson, In the Best Interest of Women and Children: A Call for
Collaboration Between Child Welfare and Domestic Violence Constituencies, briefing paper
prepared for the conference Domestic Violence and Child Welfare: Integrating Policy and Practice
for Families, 1994. See also Dubin Written Testimony, supra at 10–11.

60

Bittner Testimony, supra at 93; Coleman Testimony, supra at 122.

61

Coleman Testimony supra at 121–123.

62

APA Report, supra.

63

Donahue Testimony, supra at 8.

64

Id. at 5–6.

65

Lopez Testimony, supra at 22.

66

Fonner v. Fonner, 731 A.2d 160 (1999); Dye v. McCoy, 423 Pa. Super. 334, 621 A.2d 144 (1993);
Snyder v. Snyder, 427 Pa. Super. 494, 629 A.2d 977 (1993).

67

Commonwealth v. Snell, ___ Pa. Super. ___, 737 A. 2d 1232 (1999).

68

The Gender Bias Task Force of Texas Final Report, p.72 (1994) [hereinafter Texas Report].

69

The Report of the Gender Bias Study of the Supreme Judicial Court, Commonwealth of
Massachusetts, p. 80 (1989) [hereinafter Massachusetts Report].

70

Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic Bias in
the Courts, p. 138 (1997).

71

Massachusetts Report, supra at 90.

72

A Massachusetts civil abuse statute prohibits the awarding of temporary custody or visitation to
batterers.

73

Texas Report, supra at 68.

74

Report of the New York Task Force on Women in the Court, Fordham Urban Law Journal, Vol.
XV, Number 1 (1986–1987), p. 46.

75

Massachusetts Report, supra at 92.

76

The training should include but not be limited to:
a. the dynamics of domestic violence;
b. the psychological characteristics of abusers and survivors;
c. the impact of domestic violence on children and basic child development;
d. the racial stereotypes and cultural impediments that may inhibit minorities and persons of
various ethnic backgrounds from coming forward or proceeding with domestic violence cases;
e. the procedural and substantive laws that affect the processing, implementation, and enforcement
of PFA orders in domestic violence cases;
f. the availability of advocacy programs, shelters, and other related social services agencies for
persons who have experienced domestic violence; and
g. related state and federal laws concerning weapons, custody, spousal and child support, advocacy,
confidentiality, and criminal offenses.

11

SEXUAL ASSAULT

420

INTRODUCTION

422

SYNOPSIS OF FINDINGS AND RECOMMENDATIONS

423

RESEARCH METHODOLOGY

440

RELEVANT PENNSYLVANIA LAW

441

OTHER TASK FORCE FINDINGS

444

GENERAL FINDINGS

448

RECOMMENDATIONS

450

ENDNOTES

SEXUAL ASSAULT

INTRODUCTION
Law enforcement officials consider sexual assault to be
the most underreported violent crime in America.
Nearly 75 percent of the survivors1 of sexual violence
nationwide do not report the incidents, according to
official estimates.

420

Statistics demonstrate that sexual violence is occurring with frequency in
communities across the nation. Every 46 seconds a rape occurs somewhere
in the United States; this translates into 1.3 rapes every minute, 78 every
hour, 1,871 every day, and 683,000 every year.2 Moreover, sexual assault is
undeniably a gender-based crime. According to recent statistics released by
the U.S. Department of Justice, 89 percent of reported sexual assaults were
against women and 11 percent were against men.3 One national study
revealed that 17.7 million women in the United States have experienced
rape or attempted rape at some time in their lives.4
The exact prevalence of rape and sexual assault is difficult to determine,
however, because the crime is so underreported. In fact, law enforcement
officials consider sexual assault to be the most underreported violent crime in
America.5 Nearly 75 percent of the survivors of sexual violence nationwide do
not report the incidents, according to official estimates.6 This is the case for a
variety of reasons. First, sexual violence differs from all other crimes in that it
hurts individuals at the most personal level.7 It is taboo to discuss the subject
in many sectors of our society, and the survivor is often blamed for instigating
the crime through suggestive dress or behavior. Second, about 22 percent of
survivors are raped by intimates such as husbands or boyfriends, 47 percent
by acquaintances and 2 percent by other relatives.8 The circumstances of
acquaintance rape add to the discomfort and shame of survivors, and often
diminish their credibility in the eyes of the justice system. When a survivor is
a person of color, she is even less likely to report a sexual assault because she
may perceive that the system is already predisposed against her.9
Statistics reveal a similar reluctance on the part of survivors in Pennsylvania
to report these offenses to authorities. In 2001, Pennsylvania police
departments received 3,139 forcible rape reports, but the actual number
would likely have been closer to 10,000 if the rate of unreported rapes had
been taken into account, and the number would have been even higher if

SEXUAL ASSAULT

rape crisis center statistics had been considered.10 In fiscal year 2001–2002,
Pennsylvania Coalition Against Rape (PCAR) crisis centers provided
counseling services to 11,616 female survivors 18 years of age and older,11
and served 8,840 female survivors under age 18.12
Clearly, there is a pressing need to address crimes of sexual violence in our
society and, in particular, the manner in which the justice system responds
to such crimes. While most commentators recognize recent significant
improvements in the way the law enforcement community treats survivors
of sexual violence after an assault, the medical community and the public at
large remain concerned about the manner in which the justice system
investigates and prosecutes crimes of sexual violence.13

Focus of the Inquiry
In its study of sexual assault, the Committee sought to determine how the
Pennsylvania justice system processes rape and sexual assault cases and how
survivors are treated throughout the legal process. The inquiry focused on the
experiences of sexual assault survivors, and also examined the perceptions and
views of other parties involved in prosecuting and defending sexual assault
cases, including survivors’ advocates, prosecutors, and defense attorneys.
Of special interest to the Committee were survivors’ impressions of their
experiences in the justice system and their suggestions about ways that the
experiences might be improved. Attorneys involved in the prosecution of
sexual assault cases were asked to provide their insights as to whether those
cases are handled in the same manner as other serious felonies with regard to
bail, sentencing, and assignment of credibility to survivors; whether cases
where the parties know each other are investigated and prosecuted differently
from cases involving strangers; and other pertinent issues.

Specific Research Methods
The Committee obtained data and guidance through four primary avenues
of inquiry: a survey that was disseminated to district attorneys and public
defenders throughout the Commonwealth of Pennsylvania; three roundtable
discussions led by a trained facilitator and attended by rape and sexual
assault survivors and their advocates; a review of testimony from witnesses
at the Committee’s six public hearings; and other state task force reports and
studies on the issue.

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SYNOPSIS OF FINDINGS AND
RECOMMENDATIONS

422

The research of the Committee reveals that in Pennsylvania, as in other states,
many survivors of rape and sexual assault, by reason of their experiences, have
low expectations that their cases will be treated with objectivity and due
diligence. Stereotypical attitudes about rape and about women in general are
still present in the society at large and in the minds of some judges, prosecutors,
defense attorneys, and police officers. The biases are most apparent in cases in
which the survivor knows the perpetrator. Many survivors reported that some
judges and attorneys seemed to hold them responsible for the offenses
perpetrated against them by acquaintances. Survivors also noted serious
deficiencies in the investigation of, and trial procedures for, sexual assault
cases—deficiencies that can effectively re-traumatize survivors. For example,
survivors cited as particularly difficult the often repetitive aspects of the
investigation stage, during which they can be subjected to multiple interviews
and forced to recall and retell their stories of sexual and physical violence many
times. Survivors reported that trial delays, caused when defendants were
granted a series of continuances, created additional stress and prolonged the
ordeal, making it difficult for survivors to put the assaults behind them.
In light of this information, it is clear that better training of all persons
involved with sexual assault cases is necessary to ensure that these cases are
handled more effectively and that survivors are treated with sensitivity. In
particular, training about sexual violence should be provided to judges, court
staff, prosecutors, and defense attorneys. Police officers should be encouraged
to receive similar training. This training should address the manifold legal
and social issues concerning rape and sexual assault. Beyond training, there
is a need for significant changes in the procedures employed by the law
enforcement community and by prosecutors’ offices during the investigation
and prosecution of sexual assault cases. These changes should include:
•

Coordinating a process for interviewing survivors that reduces the
necessity of repeated interviews;

•

Reducing the number of continuances granted to both parties to ensure a
speedier trial;

•

Assigning only experienced prosecutors to cases involving sexual assaults;

•

Incorporating vertical prosecution by assigning a single prosecutor to
handle a case from start to finish;14

•

Notifying survivor advocates when a sexual assault survivor enters the
criminal justice system; and

•

Improving courtroom facilities in order to protect the mental and
physical well-being of survivors.

SEXUAL ASSAULT

RESEARCH METHODOLOGY
SURVEY OF PROSECUTORS AND DEFENSE ATTORNEYS
With the assistance of Nancy Hirschinger, Ph.D., assistant professor at
Widener University and former research consultant with the Center for
Clinical Epidemiology and Biostatistics at the University of Pennsylvania, the
Committee designed a survey that was distributed to all district attorney and
public defender offices throughout Pennsylvania. The survey was designed to
assess whether sexual assault offenses are prosecuted in a way that meets a
survivor’s needs without violating the rights of the defendant.
The Survey Instrument and Method

The survey, attached in Appendix Vol. III, consisted of 60 questions, 16 of
which were both quantitative and open-ended. Most of the quantitative
questions elicited “yes” or “no” responses or provided a three-point scale
that allowed respondents to choose “lower,” “the same,” or “higher.”
The survey addressed the following issues related to the prosecution of
rape and sexual assault cases: differences in pre-trial release, bail amounts,
sentencing, willingness to prosecute, and treatment of survivors in assaults
of a sexual nature compared to other types of assaults; treatment of
survivors with a prior relationship with the assailant compared with those
who did not know their assailant; the influence of the survivor’s personal
characteristics, such as socioeconomic status, style of dress, and patterns
of speech, on the conduct of the prosecutors, defense attorneys, and the
judiciary; differences in the credibility accorded survivors by prosecutors,
defense attorneys, and judges; the frequency of the use of weapons in the
commission of sexual assault; evidence of coercion and its effect on the
decisions of prosecutors, judges, and juries; a comparison of the use of
polygraphs by prosecutors for survivors of sexual assault versus other types
of assault; the influence of survivor witness statements on the court; the
layout of court facilities relative to the needs of survivors; the needs of nonEnglish speaking survivors of sexual assault; the charging of defendants in
sexual assault offenses; and the effects of the survivor’s race, ethnicity, and
gender upon the prosecution and trial of sexual assault offenses.
A total of 86 respondents answered the survey, including 46 district
attorneys (54 percent) and 40 public defenders (46 percent). The age of
the respondents ranged from 28 to 70. Approximately 65 percent of the

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respondents were men, 30.5 percent were women and most of the
respondents were white (97.6 percent). All but two of the respondents
are currently practicing law, and have been for three to 37 years; the
two exceptions left the answer blank. And in the past two years, each
respondent, or his/her office, handled between one and 275 sexual assault
or rape cases.

424

According to the survey analysis, attached in Appendix Vol. III, prepared by
Barry Ruback, professor of criminology at The Pennsylvania State University,
and his graduate assistant, Amy L. Anderson, most of the survey results are
based on frequencies, meaning the percentage of respondents who fall into
each category. In many cases, statistical tests were conducted using a chisquared test when appropriate (i.e., 2 X 2 tables). For other questions, a
univariate analysis of variance was conducted. This type of analysis (F tests)
determined whether there were main effects of independent variables as well
as interaction effects of the main independent variables on the outcome of
interest.
The small sample size (n=86) makes a determination of statistical
significance difficult, but if significance is achieved it means that there
is a strong relationship between the variables. The three main independent
variables for respondents were age, gender, and respondents’ job
classification as a prosecutor or defense attorney. Since there was virtually
no variation in the race of respondents, results were not analyzed on that
basis. When high correlations occurred, the relationship of other
independent variables was assessed. Statistically significant findings
are noted as such, with the appropriate test included in parentheses.
Findings

Bail and sentencing

More than 39 percent of respondents [to the
survey]…reported that the sentence length in cases
where the parties were acquainted was shorter than the
sentence length where the parties were strangers.
With regard to bail and sentencing, the survey indicated that defendants were
not receiving lower bail or shorter sentences in rape or sexual assault cases
when compared with other felonies of the same class. There were differences,
however, in bail decisions for rape and sexual assault cases when the

SEXUAL ASSAULT

individuals involved knew each other. While over half of the respondents
reported that the bail was the same whether the parties were acquainted with
each other or not, approximately 39 percent of the respondents noted that
bail was lower when the survivor and offender were acquainted. Only
3.7 percent reported bail being higher in such cases.
In terms of sentencing, more than 95 percent of respondents reported
that sentences in rape and sexual assault cases were the same or higher
than those for other felonies of the same class. More than 60 percent of
respondents reported that sentence length in cases where the parties were
acquainted was the same or higher than sentence length in cases where the
parties were strangers. More than 39 percent of respondents, however,
reported that the sentence length in cases where the parties were acquainted
was shorter than the sentence length where the parties were strangers.

Treatment of survivors and use of court facilities
More than 91 percent of respondents said judges treated survivors of rape
or sexual assault with the same sensitivity as survivors of other assaults,
and that judges assessed the complaints objectively. Additionally, almost
88 percent of respondents felt that judges treated allegations of emotional
or psychological coercion the same as they did physical compulsion.
Three questions were combined in a scale (alpha=.93) to assess whether
respondents believed that judges understood the psychological and longterm effects of sexual assault on adult and juvenile survivors. This scale had
a mean of approximately 2.5 out of 3, suggesting that most respondents
indicated that judges understood the impact. However, the findings also
indicated that although most respondents felt this way, female respondents
were significantly more likely (F=7.0, p<.02) to think judges did not
understand the psychological and long-term impact on survivors.
More than 96 percent of respondents noted that prosecutors did not subject
survivors of sexual assault or rape to polygraph examinations.
Three survey questions addressed the issue of court facilities and how survivors
were treated before trial. Eighty-two percent of respondents reported that there
were separate waiting facilities for the survivor and the defendant in rape or
sexual assault cases. Additionally, 89 percent of respondents reported that
survivors of sexual assault or rape were sequestered with a survivor’s advocate.
When asked whether results in these cases differed if survivor advocates

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accompanied survivors, about 80 percent of respondents said that results did
not differ.15 There was a statistically significant difference based upon the age of
the respondent in the answer to this question. Among prosecutors and defense
attorneys who answered the survey, those under the age of 44 were statistically
more likely than the older respondents (x=5.0, 1df; p<.03) to believe that the
survivor advocate made a difference in the outcome of the case.

Impact of a prior or current relationship between survivor and
assailant

426

The impact of a relationship between the survivor and the assailant was
also examined in the survey. Respondents were asked to consider whether
a past or present relationship (spouse, acquaintance, or family member)
between the survivor and the assailant affected the manner in which cases
were presided over, prosecuted, or defended by judges, prosecutors, and
defense attorneys.
Eighty-three percent of the respondents reported no difference in the
manner in which judges preside over such cases. The percentage of
respondents who reported no difference declined, however, when
respondents were asked about prosecutors rather than judges. Sixty-seven
percent reported no difference, but, significantly, 33 percent of respondents
did report a difference in the manner in which a case is prosecuted where
the survivor and the assailant knew each other. This was attributed to a
shift in responses by male public defenders, who were more likely than
their female counterparts to report a difference in the prosecution of cases
in this context.
Many survey respondents noted that defense attorneys handled acquaintance
and stranger cases differently. Sixty-two percent of respondents reported that
defense attorneys defended a rape case differently when the parties have a
current or past relationship or acquaintance.
When asked whether acquaintance rape or sexual assault cases were brought
to trial less often, more often or the same as stranger cases, 64 percent of the
respondents indicated that acquaintance cases were just as likely to go to
trial. Thirty percent, however, said acquaintance cases were less likely to be
brought to trial. In terms of cross-examination, more than 61 percent of
respondents reported that survivors of acquaintance rapes or sexual assaults
were subjected to more extensive cross-examination than were survivors in
rape and sexual assault cases involving strangers. The respondents who were

SEXUAL ASSAULT

more likely to believe that survivors were subjected to more extensive crossexamination were district attorneys (x=10.1, 1 df; p=.001), and particularly
female district attorneys (F=7.57, p,.01).

Impact of survivors’ personal characteristics on trial tactics
Survey responses revealed that trial tactics employed by defense attorneys
in rape and sexual assault cases were also influenced by the personal
characteristics of survivors, such as manner of dress, hair styling, and
pattern of speech. Forty-eight percent of respondents agreed that defense
attorneys reference such characteristics in order to discredit survivors.
Similarly, more than 23 percent of respondents said a survivor’s low
socioeconomic status affected trial strategies regarding, for example, the
scope of cross-examination and the acceptance of plea bargains made by
defense attorneys. Likewise, almost 21 percent of respondents said high
socioeconomic status impacted the same types of trial strategies.
Respondents were also asked to list the reasons they thought socioeconomic
status mattered for either prosecutors or defense attorneys. The most
frequent answers included the following:
•

Survivors with higher socioeconomic status have more resources at their
disposal to assist them in securing a conviction (e.g., availability and use
of expert witnesses or private investigators);

•

Survivors with higher socioeconomic status elicit more sympathy, possibly
as a result of more family or community support;

•

Survivors with lower socioeconomic status are accorded less credibility in
the minds of many parties, including the jury;

•

Survivors with lower socioeconomic status are more likely to be perceived
as having a prior record or as being drug or alcohol users;

•

More aggressive cross-examination may be allowed where there is a
survivor of lower socioeconomic status; and

•

Socioeconomic status of the survivor may affect decisions with regard to
challenges to be exercised in jury selection.

427

SEXUAL ASSAULT

Credibility of survivors

428

Survey respondents were asked questions about whether law enforcement
officers, prosecutors, and judges accorded survivors of sexual assault or
rape less, more, or the same level of credibility, as compared with victims
of other types of assaults. The majority of the respondents reported that
rape or sexual assault survivors were treated the same as victims of other
assaults. The responses varied, however, on the basis of whether the
respondent was a prosecutor or defense attorney. Prosecutors generally felt
that law enforcement officers, judges, and defense attorneys accorded rape
and sexual assault survivors less credibility than survivors of other assaults.
Prosecutors saw many reasons behind the effect, including inaccurate
stereotypes about women; prior failure of survivors to follow through with
prosecutions; and preconceived and erroneous ideas about the crime of
rape. Public defenders, in contrast, felt that law enforcement officers,
judges, and prosecutors accorded rape and sexual assault survivors more
credibility than victims of other types of assaults.

Treatment of juvenile survivors
Asked whether juvenile survivors of rape or sexual assault were treated
the same or differently from adult survivors, respondents divided almost
evenly, with 51 percent reporting that juveniles were treated differently. The
most frequently reported differences included closed courtrooms; preparing
juveniles for the court experience by showing them the courtroom before
trial or explaining procedures in detail; protecting juveniles from crossexamination; the softening of cross-examination by public defenders to
avoid alienating the jury; the presence of a child advocate, a special team
or services for the juvenile survivor; additional credibility accorded to
juveniles by judges; better understanding of reasons for a juvenile survivor’s
delay in reporting an offense; and greater interest in convictions and stiffer
penalties when the survivor was a juvenile.

Impact of gender, race, and ethnicity of survivor on trial
Two survey questions were designed to evaluate how respondents viewed
judges’ reactions to female and male survivors of rape and sexual assault.
The survey asked whether judges assessed the credibility of men and women
in the same manner; and whether judges treated men and women with the
same degree of sensitivity. More than 91 percent of the respondents said
judges assessed the credibility of male and female survivors in the same
manner. However, 17 percent of the sample did not respond or indicated that
there were too few male survivors to answer the question. With regard to
sensitivity, slightly fewer respondents (80 percent) reported that judges were
likely to treat male survivors with the same degree of sensitivity as they do
females.

SEXUAL ASSAULT

The survey also contained three questions relating to whether the gender
of the judge, the prosecutor, or the defense attorney had an effect on the
outcome of a rape or sexual assault case. The overwhelming majority of
respondents reported that the gender of the judge, prosecutor, or defense
attorney had no impact on the outcome of rape and sexual assault cases.
Another question asked whether the race or ethnicity of the survivor
affected the outcome of a rape or sexual assault case. Almost 88 percent of
respondents reported no impact. Among the remaining 12 percent of survey
respondents who felt that the race or ethnicity of the survivor did affect
cases, all gave reasons that pertained to jury attitudes. Respondents cited
examples that included the perceived bias of white jury members against
survivors of color; and the perceived unwillingness of jurors to assign the
same credibility to African American survivors that they assigned to white
survivors.
The questions regarding race and ethnicity appeared to have gender
implications. A chi-squared test revealed a significant effect for gender
(x=12.0, 1df; p=.001) among respondents, with men less likely to report
that race or ethnicity had an impact on the outcome of a case and women
more likely to report that race or ethnicity had an impact.

Use of voir dire
With respect to voir dire, there were differences in responses as to whether
more voir dire would help to uncover bias in potential jurors, with more
than 62 percent of respondents answering in the affirmative. While males
were split in terms of whether more voir dire would be helpful, women
were more likely to believe that more voir dire would be helpful. In
contrast, district attorneys were more likely to think more voir dire
would not be useful to uncover bias in potential jurors.

Need for training for prosecutors and defense attorneys
Respondents were asked to identify the nature of training available to
them, and to indicate whether additional training would be advisable. The
graph below depicts the responses to this question:

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SEXUAL ASSAULT

TABLE 1

Training Offered
Training Offered

430

Number

Special services training: (e.g., sexual abuse, domestic violence)

16

Mentoring by experienced attorneys

15

Continuing legal education (CLE)

14

PA District Attorney s Association or PA District Attorney s Institute
training classes

14

Other training

14

Respondents were also asked to indicate the type of assistance that could
better prepare them to handle rape/sexual assault cases. The most common
responses included the following:
•

Funding to consult with experts;

•

Seminars with hands-on experience;

•

More training in jury selection and case preparation;

•

Multidisciplinary training and medical evidence training; and

•

More funding for prosecution.

Other questions of significance
The survey contained several general questions that do not fit under any of the
categories set forth above. First, approximately 70 percent of respondents reported
that survivors of rape or sexual assault sometimes withdrew their complaints or
failed to follow through with criminal proceedings against assailants. Analysis of
the responses found a significant effect for gender (x2 = 6.3, 1 df; p<.02) and the
respondent’s job classification as a prosecutor or a defense attorney (x2 = 8.5, 1 df;
p<.01), with males and district attorneys more likely to say that the survivors failed
to follow through. Second, when asked whether survivors encouraged sexual
assaults through behavior toward the assailants preceding the incidents, 62 percent
of respondents said the survivors did not. Chi-squared tests suggested a significant
effect in the responses for both gender (x2 = 5.9, 1 df; p<.02) and respondent’s job
classification (x2 = 5.0, 1 df; p<.03), with females and district attorneys more likely
to report in the negative. Third, respondents were divided on a question that asked
their perceptions of whether survivors truthfully reported complaints against
defendants. Approximately 52 percent reported that they felt that most survivors
told the truth and 49 percent of respondents reported that survivors did not. Chisquared tests found a significant relationship with job classification (x2 = 27.1, 1 df;
p<.001) in the responses, with district attorneys much more likely to say “yes” and
public defenders much more likely to say “no.”

SEXUAL ASSAULT

ROUNDTABLE DISCUSSIONS
In addition to the survey, the Committee conducted roundtable discussions
in Allegheny, Delaware, and Jefferson counties. The locations were chosen to
represent a range of geographic regions and a balance of urban, suburban, and
rural participants. Participants included survivors of rape and sexual assault as
well as persons who advocate on their behalf. Survivor participants were white
and African American women, ages 17 to over 50, with a range of experiences
in the criminal justice system. Each roundtable had seven to 12 participants
led by the same facilitator, who had been trained in both facilitation and in the
legal aspects of sexual violence.
The purpose of the roundtable discussions was to assess the nature of
survivors’ experience with the various aspects of the criminal justice system.
The roundtables provided a unique opportunity for the Committee to
gather information directly from survivors themselves. All participants were
women, and most of the women were survivors of either rape or sexual
assault. In some instances, participants were parents of child survivors.
The facilitator asked the survivors three primary questions:
1. What is it that occurred that brought you into contact with the criminal
justice system?
2. Given everything that has occurred, what would you say was at the
heart of your experience in the criminal justice system?
3. If possible, what would you change about your experience within the
criminal justice system?
The survivors extensively discussed three main areas of concern in each
of the roundtable sessions. First, roundtable participants were concerned
that law enforcement officials and prosecutors failed to investigate and
prosecute cases thoroughly when the survivor knew the assailant. Second,
survivors widely believed that law enforcement officials did not understand
the serious, deeply disturbing, and long-term effect of sexual assault upon
an individual. Third, survivors and advocates recounted many problems
with the investigation and trial process, including repetitious interviews,
multiple continuances that repeatedly delayed the trial, unprepared and
insensitive prosecutors, and inadequate physical accommodations in the
courthouse. A copy of the report prepared by the roundtable discussion
facilitator is attached in Appendix Vol. III.

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SEXUAL ASSAULT

Perceptions of the criminal justice system were remarkably similar at the
three roundtables. Most frequently expressed were the following concerns:
Differing responses by law enforcement officers and
prosecutors in sexual assaults involving
acquaintances.16

432

In situations in which survivors of rape and sexual assault knew the perpetrator,
roundtable participants perceived a distinct bias by law enforcement officers
and prosecutors against the survivors. Survivors said the bias affected the extent
and thoroughness of the investigation, as well as whether a case would be
prosecuted.
Roundtable participants also expressed a belief that, when the survivor and
the defendant knew each other, law enforcement officers were less inclined
to believe the survivor. In such cases, a survivor’s credibility is often at
issue; participants frequently reported that law enforcement officers
appeared to proceed as if the charges had been fabricated and to search for
a motive to support that view. Respondents said that even when law
enforcement officers appeared to believe survivors, they often discouraged
survivors from pressing charges or pursuing the cases, explaining that
convictions were difficult to obtain.

In situations in which survivors of rape and sexual
assault knew the perpetrator, roundtable participants
perceived a distinct bias by law enforcement officers
and prosecutors against the survivors. Survivors said
the bias affected the extent and thoroughness of the
investigation, as well as whether a case would be
prosecuted.
When a survivor knew the defendant, participants reported that some law
enforcement officers ignored extensive evidence offered by the survivor. For
example, participants noted that police did not always speak to available
witnesses. In another example, police declined to go to the survivor’s home
to search for a bloodstained towel that she reported had been used during
the rape.

SEXUAL ASSAULT

Survivor participants identified race as an added factor that impeded
the investigation and prosecution of sexual assault, particularly in cases
involving assailants known to the survivor. All survivors of color who
participated in the roundtable discussions perceived some level of racism
among some law enforcement officers and some prosecutors. The
participants said the perception of racism was particularly apparent when
the defendant was a person of color and when the survivor of color knew
the defendant.
Other issues raised in the roundtable sessions included male-on-male rape
and sexual assault, and cases in which the survivor has an history of illicit
drug use. Participants were asked whether law enforcement officers
investigate such cases thoroughly. One participant recounted an incident
involving a male survivor who was sexually assaulted while hitchhiking.
The survivor immediately went to a local hospital emergency room and
told police the name stitched on the man’s shirt and the license plate
number of his vehicle. The survivor, who had recently been in a drug
rehabilitation program, ended up being accused of exchanging sex for
drugs. When police finally checked the survivor’s story, they found that the
man he named had a sexual assault record. Presenting this example at the
roundtable, an advocate from a sexual assault center explained that the
survivor had later committed suicide.
Insensitivity displayed by law enforcement community
and prosecutors

Frequently, a survivor’s contact with a law enforcement agency following a
rape or sexual assault is her first experience with the criminal justice system.
The agency may be a city or borough police department, the general or
special units of a county police department, or the Pennsylvania State Police.
Many roundtable participants, however, expressed serious concern about the
lack of understanding and sensitivity that law enforcement officers exhibit
towards survivors of rape and sexual assault.
Participants described situations in which a survivor might be reluctant
to report a sexual assault offense or might feel compelled to continue a
relationship with the perpetrator and delay reporting the offense, particularly
in situations in which the survivor knew the perpetrator. In such circumstances,
survivors at the roundtables said law enforcement officials were reluctant to
believe the survivor and to file criminal charges. One participant described her
need to remain in her home for six months after being raped and assaulted by

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her husband. The police eventually helped the survivor seek a protection from
abuse order, but only after saying they had doubted her credibility because she
had remained in the home after the assault. Another participant reported an
instance of severe insensitivity by a police officer after she reported being raped
by her husband, from whom she had been separated from for several months.
Following the incident, the officer put the woman in the back of the police car
and said he should have a third person present in the car so that he would not
be accused of rape as well.

434

Similarly, participants talked about prosecutors who consistently displayed a
lack of knowledge, biased and stereotypical beliefs, and extreme insensitivity
to the needs of survivors. Describing the problems as chronic, participants
cited a litany of examples, including prosecutors unwilling to prosecute
unless a conviction appeared to be certain, or minimizing the severity of
the crime if the survivor knew the perpetrator. Roundtable participants
also described complaints never being prosecuted and cases taking an
unreasonable length of time or occurring only because of the survivor’s
persistence.
Some participants described prosecutors who were not prepared, who met
with survivors for the first time on the day of trial, and who had inadequate
knowledge about the underlying facts. Participants also called prosecutors
insensitive to the shame, embarrassment, and anxiety experienced by
survivors as they proceeded to trial. Participants described inadequate
waiting facilities where survivors were forced to stand in court hallways
with the perpetrator and/or his family and support network—a description
contrary to the perceptions of prosecutors and defense attorneys in the
separate survey. One roundtable participant described the prosecutor’s
conducting conversations with her in the hallways of the courthouse. When
the embarrassed survivor complained, the prosecutor said, “Don’t worry.
No one will hear you,” even though they were surrounded by strangers.
The initial incident report is often a difficult decision because of shame and
fear on the part of a rape or sexual assault survivor. When prosecutors
exhibit insensitive attitudes and show their reluctance to pursue the case,
the survivor’s shame and fear intensify, contributing to the long-term harm
that a survivor experiences.17

SEXUAL ASSAULT

Problems with the investigation and the trial process
which re-traumatize survivors

Roundtable participants also described what they perceived as serious
deficiencies in investigation and trial procedures that cause discomfort for
survivors. As soon as survivors of rape and sexual assault enter the criminal
justice system, they are subjected to repeated interviews and duplicate
elements in the investigation. It is difficult for survivors—particularly child
survivors—to recall and retell their stories of sexual and physical violence.
In addition, survivors said they were often frightened or traumatized by the
presence of the defendants in the courtroom—in some cases because the
defendants had threatened them with severe physical violence if they ever
revealed what happened.
Even when the investigation is properly completed, many sexual assault
survivors note that the defendants are able to delay the trial process by
changing lawyers or seeking continuances for additional investigation time.
The delays are often permitted without regard for the survivors, causing
them additional stress as well as economic hardship. In such cases,
survivors may arrange for days off from work, only to arrive at the
scheduled times and learn that matters have been or are going to be
postponed.

PUBLIC HEARING TESTIMONY BY ATTORNEYS,
ADVOCATES AND EXPERTS
The experiences and concerns of sexual assault survivors were also
presented at six public hearings held by the Committee. Testimony was
offered by advocates and attorneys who work with sexual assault survivors
throughout Pennsylvania, and by academics who study sexual assault. The
testimony echoed the recurring themes of this and other state task force
reports: that victims believe they are not taken seriously; that a relationship
with the perpetrator tends to minimize the seriousness of the crime; that
there can be insensitivity and gender stereotyping; and that cultural, ethnic,
and racial factors affect the outcome of cases.
In addition, there were speakers who noted positive trends. In particular,
Jacqueline Mae Johnson, of the Pennsylvania Coalition Against Rape, said
at the Erie hearing that she has had “the good fortune to work in a county
where victim advocates, law enforcers, and prosecutors could sit down in the
same room and talk honestly and respectfully with each other.”18

435

SEXUAL ASSAULT

In an analysis of the public hearing testimony, the Committee found several
recurring themes:
Credibility of survivors questioned by law
enforcement officers, judges, attorneys, and jurors

436

Many witnesses at the hearings complained that law enforcement officers,
officers of the courts, and jurors do not accord appropriate credibility
to survivors. At the Erie hearing, Joyce Lukima, training and technical
assistance director of the Pennsylvania Coalition Against Rape, testified
that fear of being blamed and not believed is the primary reason women
either do not report sexual assault or delay in reporting it. “Our system
reinforces the larger societal belief that a woman is somehow responsible
for sexual assault committed against her,” 19 Lukima said. “The victim
of violence is held responsible for enticing the offender, luring him into
committing a felony.”20 The implication of this attitude is that the behavior
of the survivor somehow makes the offender less responsible for the
assault. At least two witnesses reported that the physical maturity of
a young girl or her sexual behavior prior to the assault often leads
prosecutors to question the veracity of her story.21 In a brutal rape by
two 16-year-olds, a judge was reported as describing the 11-year-old
survivor as “fresh and flirty.”22 In other cases, older women and married
women may be accused of reporting an assault in order to cover up an
affair or other illicit deed.23
Insensitivity to survivors on the part of judges,
prosecutors, and the law enforcement community

Joyce Lukima told about a judge who allowed a class
of students to…observe as a 13-year-old girl testified
about being sexually assaulted by her stepfather.
Afterwards, what stood out most for the girl…was the
fact that she had been forced to testify about a highly
traumatic and personal situation in front of…her peers.
Another recurring theme in the public hearing testimony was that many
people in the justice system are not generally aware of the seriousness of
sexual assault and the difficulties that survivors experience afterwards. One
witness described the situation clearly for the Committee: “Sexual assault
is a crime of profound personal injury…the very nature of sexual assault
frequently causes feelings of shame, humiliation, and degradation for its
victims.”24

SEXUAL ASSAULT

People within the justice system may contribute to such feelings, perhaps
without being aware that they are doing so. For example, Lukima told
about a judge who allowed a class of students to enter the courtroom and
observe as a 13-year-old girl testified about being sexually assaulted by her
stepfather. Afterwards, what stood out most for the girl regarding her
experience in the justice system was the fact that she had been forced to
testify about a highly traumatic and personal situation in front of a group
of her peers.25 Additionally, survivors are routinely asked to discuss their
assault in graphic detail, with little or no attention given to the stress and
discomfort this can cause. Often, no one explains to the survivors why such
detail may be necessary. On a final note, testimony at the hearings revealed
significant misunderstandings over the nature of rape and sexual assault.
As Ellen Kerr, crisis intervention coordinator of the Pennsylvania Coalition
Against Rape, aptly put it, “Sexual assault cases still…hinge on the juror’s
perception of who rapes as well as the difference between what’s sex and
what’s rape. And that’s a distinction that needs to be made in this society.
What’s the difference between sex and rape? People don’t understand it.”26
Acquaintance with the perpetrator influences
treatment of survivors and prosecution of cases

Witnesses also testified about the disparity in treatment of survivors,
depending on whether the assailant is an acquaintance or a stranger. At the
Philadelphia hearing, witnesses testified about the myth that stranger rapes
are more traumatic than acquaintance rapes. Witnesses noted that self-blame
is likely to be higher when a woman is raped by an acquaintance, but that
many judges and attorneys were less likely to believe an acquaintance rape
survivor.27 Witnesses also said a relationship with the perpetrator could have
additional complications, especially in relation to childcare and custody. One
witness testified about being sexually assaulted by her husband, and her
experience with a judge who refused to prosecute the husband because he
would have surely been found guilty. Asked to explain his logic, the judge
reportedly asked the woman who would care for her and her children if her
husband were sent to prison.28 In other instances, witnesses observed that a
woman could fear a spouse so much that she would do anything to remain
safe and be able to see her children.

437

SEXUAL ASSAULT

Disparity in sentencing noted by witnesses

A teacher convicted of statutory rape, aggravated
indecent assault, and corruption of minors in a case
involving students was sentenced to three years in a
work-release program. His 17-year-old victim, who
had been afraid to testify against the teacher, received a
six-month contempt sentence for refusing to testify.

438

Another common observation at the hearings was that sentences for rape
or sexual assault are lighter than for non-violent offenses. In Wilkes-Barre, a
witness told about the day she watched a judge sentence a high school student
to four months in prison for decapitating a statue with a sledgehammer, and
then sentence another student to “completing his education” for hitting a
woman with a hammer.29 In another case, a man convicted of a separate
offense subsequently raped a 15-year-old girl before he was imprisoned.
For the rape, he received only a one-to-two-year sentence that he served
concurrently with his original sentence.30 In yet another case, a teacher
convicted of statutory rape, aggravated indecent assault, and corruption of
minors in a case involving students was sentenced to three years in a workrelease program. His 17-year-old victim, who had been afraid to testify against
the teacher, received a six-month contempt sentence for refusing to testify.31
Lack of adequate representation frequently reported
by survivors and advocates

Several witnesses testified that the courtroom environment is intimidating
for sexual assault survivors. Survivors often do not know or understand the
language of the system, and they are frequently not informed of the status
of the case or actions taken by the defense. This is especially true when the
survivor’s native language is not English. Further, at the Pittsburgh hearing,
Ellen Kerr testified about several assistant district attorneys exhibiting
troubling behavior toward survivors. In one case, an assistant district
attorney failed to meet with the survivor prior to the preliminary hearing,
and then at the hearing told an advocate that her presence in the courtroom
was unnecessary. Kerr also told about assistant district attorneys pressuring
clients into accepting plea bargains that did not match the severity of the
assaults. Finally, she noted that many survivors suffered from psychological
problems or physical disabilities, including hearing and visual impairments,
which were not properly accommodated by the courts.32

SEXUAL ASSAULT

Race and ethnicity play a role in the investigation and
prosecution of crimes of sexual violence

Culture, race, and ethnicity can also influence the way a sexual assault crime is
reported by the survivor and processed by the judicial system. Kerr explained,
“Often all the participants in a courtroom are white except the defendant and
the victim, including the jurors.” Such a situation, she added, can leave a
survivor wondering if an all-white jury might dismiss her experience; or
wondering, in the case of a white survivor accusing a black man, if she might
be assigned blame for associating with African Americans.33 Jacqueline Mae
Johnson, testifying at the Erie hearing, noted that, “Race plays a key factor
in the comfort of individuals that are pursuing justice through the criminal
justice system.”34 Johnson also noted that there was only one African
American prosecutor out of 14 in her county and that the racial imbalance
in the police department was similar. She explained that reporting a sexual
assault could be especially problematic for African American women because
they perceived that African American men were treated unfairly by the justice
system.35
At the Wilkes-Barre public hearing, Beata Peck Little, executive director
of Women’s Resources of Monroe County, testified to the perceived bias
against Latinos and African Americans who have recently moved to the
northeastern region of the state from New Jersey or New York. She said
judges and attorneys failed to understand ethnic and cultural differences
that might explain why a woman would wear revealing clothes or why she
would stay in an abusive relationship.36 Judy Ariola-Rivera, bilingual and
bicultural domestic violence counselor at Women’s Resources of Monroe
County, also testified in Wilkes-Barre about an attorney telling his client
that he understood women from her country were sexually aggressive and
flamboyant.37 Such stereotypes can influence whether a prosecutor pursues
a case. At the Philadelphia hearing, Iraida Afanador, associate executive
director of The Lighthouse, noted the reluctance by prosecutors to pursue
cases brought by women of color from certain areas of the city; the
prosecutors, she said, did not want to bring cases they felt they had little
chance of winning.38

439

SEXUAL ASSAULT

RELEVANT PENNSYLVANIA LAW

440

Since 1972, the Pennsylvania Legislature has instituted dramatic changes
in the laws surrounding sexual assault, gradually abolishing loopholes and
eliminating language that impeded sexual assault prosecutions. Significant
progress was made during the Legislature’s 1995 Special Session on Crime,
when the current statutes were enacted. The 1995 legislation, known as Act
10 of 1995, went into effect May 30, 1995. It was particularly noteworthy
for its creation of the new offense of sexual assault, also known as the “nomeans-no law,” which made non-forcible yet non-consensual sex a seconddegree felony.39 Act 10 also expanded the definition of “forcible compulsion”
as follows:
“compulsion by use of physical, emotional, or psychological
force, either express or implied. The term includes, but is not
limited to, compulsion resulting in another person’s death,
whether the death occurred before, during, or after sexual
intercourse.” (18 Pa.C.S.A.§3101)
These changes were a direct response to the Supreme Court of
Pennsylvania’s decision in Commonwealth v. Berkowitz, 415 Pa. Super.
505 (1992) vacated in part on other grounds, 537 Pa. Super 143 (1994), in
which the Court held that “even though the victim repeatedly said ‘no’
throughout her attack, the assailant’s act of non-forcible, non-consensual
sex did not rise to the level of rape because force of compulsion or threat of
forcible compulsion did not exist.” A watershed in Pennsylvania rape law,
the Berkowitz decision called attention to historical difficulties in the law,
noting that “traditionally, Pennsylvania law looked with peculiar suspicion
upon the rape complaint.”40 While Act 10 did incorporate a measure of
compromise, the advocates for change have generally responded positively
to it. According to the Pennsylvania Coalition Against Rape, the new
statutes “eliminated completely the differential treatment of spousal rape,
codified a broader definition of forcible compulsion, upgraded the offense
of non-consensual sexual contact, and confirmed as a matter of law that
‘no means no.’”41

SEXUAL ASSAULT

OTHER TASK FORCE FINDINGS
Victim credibility is a recurring theme in the findings of similar studies
conducted by other states. Credibility issues can be a matter of perception;
that is, a survivor may not believe that she is being taken seriously by a
prosecutor, while the prosecutor may have quite a different opinion of the
matter. Still, deeply-rooted and long-standing societal biases may affect the
way in which sexual violence is processed by the judicial system. Many
studies found that negative societal attitudes and stereotypes towards
women can still influence the way that people think. At least two other
states, Michigan and Colorado, found that because of these attitudes, juror
reaction can be a particular problem in sexual assault cases. For example,
the Final Report of the State Bar of Michigan Task Force on Racial/Ethnic
and Gender Issues in the Court and the Legal Profession revealed that some
common societal attitudes and stereotypes might reinforce the idea that a
woman invites abuse and rape. “Jurors not only tend to be biased against
rape prosecutions, but will be lenient with defendants if there is any
suggestion that the victim contributed in some way. There is a disturbing
juror attitude that the woman ‘asked for it.’”42 Similarly, a Denver attorney
told the Colorado Supreme Court Task Force on Gender Bias in the Courts
that juries, not judges, are to blame for the difficulty prosecutors have in
convicting men of sexual assault.
“When people in the community, or average citizens, hear that a
woman has been raped, two questions come to mind very
quickly. The first is, did it really happen? And the second is, was
it her fault?…Why didn’t she do anything to stop it?…Did she
provoke it?…I’ve generally found that judges seem to be quite
sympathetic to women…but I do think in jury trials you have a
problem with juries.”43
Similar studies in other states have also found that sexual violence goes
largely unreported, in part because survivors either think that they will not
be believed or that they will be blamed for their situation. Eighty percent of
respondents to an attorney survey circulated by the Gender Bias Task Force
of Texas noted that, “One of the primary reasons that victims don’t report
incidents of rape or sexual assault to the police is the fear that the police
would not believe the victim’s story, while three-quarters indicated that
they fear that they will be blamed by the police for the assault.”44 The
Washington State Task Force on Gender & Justice in the Courts found that

441

SEXUAL ASSAULT

a “victim’s fear of the justice system (as opposed, for example, to fear of
the rapist) is directly responsible for the victim’s decision not to make a
police report.”45 A recent report by the California Coalition Against Sexual
Assault corroborates these findings, pointing out that, “Some in our
communities think rape only happens to other people, or only to certain
types of women. Too often, they blame the victim for teasing…It should
come as no surprise that three out of every four victims of rape do not
report the crime to the police.”46

442

Studies conducted by other states consistently reported that, when sexual
assault cases do go to court, survivors have concerns about the sensitivity of
prosecutors, defense attorneys, and judges before, during, and after trial. Of
particular concern are the manner and substance of questions posed to the
survivor. For example, the Nebraska Supreme Court Task Force on Gender
Fairness in the Courts found that 86 percent of the attorneys and 41 percent
of the judges agreed that defense attorneys appeal to gender stereotypes, “(i.e.,
‘women say no when they mean yes;’ ‘provocative dress is an invitation’) in
order to discredit the victim in sexual conduct cases.”47 Some states also found
a general lack of understanding surrounding the dynamics of sexual assault,
even in courts that have paid particular attention to these issues. The Gender
Bias Task Force of Texas Final Report noted that 67 percent of the
respondents to a rape crisis center survey indicated that prosecutors only
“rarely” or “sometimes” understand the dynamics of sexual assault and its
impact on the survivor, with more than 50 percent of the respondents noting
that the same is true for judges.48
Another common complaint—also raised in the Committee’s hearings and
roundtables—is that the courts treat cases of acquaintance rape or sexual
assault less seriously than instances of sexual violence by strangers, with
acquaintances routinely receiving shorter sentences or lower bail. There
is general agreement that a prior relationship between the defendant and
survivor will affect the litigation process, although there can be a significant
difference between male and female perceptions. The Washington State
Task Force on Gender & Justice in the Courts noted that, “A common
complaint of rape service providers is that judges and prosecuting attorneys
treat cases of acquaintance rape less seriously than those of rape by a
stranger.”49 In Massachusetts, the Supreme Judicial Court’s Gender Bias
Study of the Court System there found that after a prosecution is brought,
differences in the treatment of acquaintance cases emerge, most often with
respect to bail and sentencing.50 The discrepancy often appears to go

SEXUAL ASSAULT

unrecognized by judges, as reflected by survey results from the Nebraska
Supreme Court Task Force on Gender Fairness in the Courts. Their survey
revealed that while 82 percent of the judges claimed that a relationship
between the parties is irrelevant in deciding the severity of the penalty in
rape cases, 31 percent indicated that, “All other factors being equal, they
set a lower bail in criminal sexual conduct cases where the parties know
one another than where the parties are strangers.”51
Significantly, the need for education regarding sexual assault for all
participants in the justice system was uniformly recommended as essential
by other states’ studies.52 According to the studies, such education should
cover a wide variety of issues, ranging from practical legal matters to
sensitivity training. Education on how the judicial system works should
also be provided to survivors and advocates.

443

SEXUAL ASSAULT

GENERAL FINDINGS
The Committee reviewed data from the survey of prosecutors and defense
attorneys; relevant testimony from the statewide hearings; information
from the three roundtable discussions held for survivors and their
advocates; and the findings of other state task force studies on this issue.
The information received from all of these sources was remarkably
consistent.

444

The Committee found that Pennsylvania’s justice system appears to be
more sensitive than in the past to the unique issues that sexual assault cases
present. However, improvement is still needed in the manner in which such
cases are handled by law enforcement officials, attorneys, and the judiciary.
Survivors are frequently not accorded credibility
by law enforcement authorities, officers of the court,
and jurors.

The research of the Committee indicates that survivors’ fears that they
will not be believed, or that they will be implicated in, or blamed for,
the assault, are a primary reason that they do not report these crimes.
Roundtable participants noted that a survivor’s relationship with his or her
assailant and a past criminal record could affect whether police officials
investigate or pursue complaints of sexual assault. Public hearing participants
indicated that prosecutors have questioned the veracity of a young survivor’s
story based upon her physical maturity and prior sexual behavior. Similarly,
older women and married women have been accused of reporting assaults in
order to cover up affairs or other illicit deeds. In addition, credibility is often
particularly troublesome for survivors of color.
Perceptions of survivors’ credibility differ markedly, depending on who is
discussing the issue. Many of the survey respondents felt that survivors of
rape or sexual assault were accorded the same level of credibility as survivors
of other non-sexual assaults. Certain survey respondents, however, felt that
sexual assault survivors were accorded either more or less credibility,
depending on whether the respondent was a prosecutor or a defense
attorney. Prosecutors noted that law enforcement officers, judges, and
defense attorneys tended to accord survivors less credibility, while public
defenders suggested that those same individuals tended to accord survivors
more credibility.

SEXUAL ASSAULT

Cases in which the assailant is known to the survivor
are reported to be less likely to be investigated and
prosecuted—and the survivor’s credibility is more
likely to be challenged—than those in which the
assailant is a stranger.

The consensus at the public hearings and roundtable discussions was
that cases in which the assailant was known to the survivor, so-called
“acquaintance” cases, were handled differently from those in which the
perpetrator appeared to be a stranger. Survivors reported that police in
acquaintance cases were less likely to investigate the cases, or that they
conducted less vigorous investigations; and that prosecutors were less
likely to proceed to trial in such cases. Moreover, nearly 40 percent of
prosecutors and defense attorneys surveyed by the Committee reported
lower bail and shorter sentences for defendants who were acquainted with
the survivor. Nearly 33 percent of the survey respondents also reported that
acquaintance cases were less likely to be brought to trial; and a clear
majority of prosecutors and defense attorneys, 61 percent, noted that
survivors of acquaintance rape or sexual assault were subjected to more
extensive cross-examination than survivors in stranger cases.
Some law enforcement officers, prosecutors and
judges were also reported to display a lack of
sensitivity and understanding toward survivors of
sexual assault and rape, which can result in further
trauma.

Survivors speaking at the Committee’s hearings and roundtable discussions
reported experiences with police officials, prosecutors, and judges who
displayed a significant lack of understanding of the complexities surrounding
crimes of sexual violence, and the impact such crimes have on the lives of
survivors. Participants reported instances of police refusing to believe the
survivor’s account or to investigate the case when the survivor delayed in
reporting the offense or when he or she failed to leave the home where the
assailant also resided. Survivors, particularly in cases involving assailants
known to them, also reported numerous accounts of insensitivity by
prosecutors. They described experiences with prosecutors who consistently
displayed a lack of knowledge about the case and the crime, exhibited biased
and stereotypical beliefs about women and crimes of sexual violence, and
showed a lack of sensitivity toward the shame, anxiety, and humiliation
experienced by survivors of rape or sexual assault.

445

SEXUAL ASSAULT

Survivors also related instances of insensitivity by the judges, citing one
noteworthy case in which a judge permitted middle school students to
observe a 13-year old girl testifying about a sexual assault by her stepfather.
Most survey respondents were less critical of the judiciary, reporting that
judges treated survivors of rape or sexual assault with the same sensitivity
as survivors of other assaults and assessed their claims with equal
objectivity. Female respondents, however, were statistically more likely to
conclude that judges did not understand the psychological and long-term
impact of crimes of sexual violence upon survivors.

446
Survivors reported that the shame and fear they experienced in the assault
was intensified when prosecutors and other parties in the justice system
displayed insensitivity toward them, and that this contributed to the longterm harm from the offense itself.
The procedures for the investigation and prosecution
of sexual violence crimes suffer from deficiencies that
have harmful repercussions for survivors.

From the time survivors of rape and sexual assault enter the criminal justice
system, they are subjected to repeated interviews and are forced to recall
and retell their stories of sexual and physical violence. The repetition is
particularly difficult for juvenile survivors. Often, the interviews are
conducted in public places with little concern for the survivor’s privacy.
Once the case is scheduled for trial, repeated delays are granted without
regard for the survivors. The delays cause enormous stress for the
survivors, in addition to economic hardship from the lost days of work.
The courthouse facilities are often inadequate to protect the privacy and
the physical well-being of the survivor, in part because they generally lack
separate, secure waiting rooms for the survivor and the assailant.
It is important to note that prosecutors and defense attorneys had one
perception of the adequacy of court facilities and of the value of advocates
during trials, while roundtable participants, i.e. survivors and their
advocates, had markedly different perceptions. The roundtable participants
found court facilities inadequate because they did not separate survivors
from defendants and did not protect survivors’ privacy during conversations
with prosecutors. Moreover, the survivors reported that the presence of
survivor advocates during trial was critical to their ability to function in
court, a perception that was not shared by prosecutors and defense
attorneys.

SEXUAL ASSAULT

The race and ethnicity of a rape or sexual assault
survivor plays a role in the manner in which a case
is handled in the criminal justice system.

Survivors of color expressed reluctance to report or prosecute a rape or a
sexual assault because of their perception that their testimony would not be
given credibilility by the predominantly white juries, prosecutors, or judges
in most areas of the Commonwealth. They also reported that the law
enforcement community sometimes fails to investigate their reports of
sexual violence, particularly when they involve assailants of color with
whom the survivors are acquainted. Witnesses at public hearings also
reported that judges and attorneys displayed a lack of understanding of
cultural differences, especially with regard to the Latino community. The
witnesses said this lack of understanding not only affected behavior during
trial, but contributed to their own reluctance to report and to proceed with
prosecuting crimes of sexual violence.

447

SEXUAL ASSAULT

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Establish a program of education53 for the judiciary, on the subject of
crimes of sexual assault and rape.

448

2. Require periodic training54 for all court personnel on the nature of the
crimes of rape and sexual assault. The training should be directed
toward court administrators, clerks, and others whose duties bring
them into contact with survivors of rape and sexual assault.
3. Require trial courts to devise and implement guidelines for ensuring
that sexual assault and rape cases are effectively managed. Such
guidelines should address:
•

The impact that granting multiple continuances in rape and sexual
assault cases has upon survivors;

•

Providing more opportunities for survivors to make statements at
sentencing; and

•

Protecting the mental and physical well-being of survivors by
providing a comfortable, safe environment within the courthouse.
This room or space should be located in a secure area separate from
the defendant and his or her family.

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Enact legislation enabling sexual assault survivors to obtain civil
protection orders.

TO DISTRICT ATTORNEYS
The Committee recommends that district attorney’s offices:
1. Provide educational programs for prosecutors handling cases involving
rape or sexual assault survivors, similar to the education programs
recommended above for court personnel. Prosecutors should also receive
training that helps them to better understand survivors’ fears of the court
process and the effect that multiple interviews and continuances have
upon survivors’ emotional well-being.
2. Provide oversight that ensures that acquaintance rape and sexual
assault cases are prosecuted with the same vigor as stranger rape and
sexual assault cases.

SEXUAL ASSAULT

3. Coordinate with and make use of sexual assault forensic examiners in
rape cases.55
4. Routinely inform a sexual assault advocate/counselor when a sexual
assault case is initiated and support each survivor’s request to have an
advocate attend all court appearances with the survivor.
5. Promote the use of and coordinate efforts with sexual assault response
teams (SART), which are multidisciplinary teams that support survivors
throughout the investigation and trial process.
6. Whenever possible, implement vertical prosecution of sexual assault
cases.

TO BAR ASSOCIATIONS
The Committee recommends that the Pennsylvania Bar Association and/or
county bar associations:
1. Incorporate representation of sexual assault survivors’ civil legal needs
into pro bono programs.
2. Provide programs to members of the bar and the law enforcement
community addressing the issue of sexual violence.
3. Offer continuing legal education courses for attorneys that include the
same information on rape, sexual assault, and related legal issues as
addressed in the education programs for court personnel.

TO LAW ENFORCEMENT OFFICES/AGENCIES
The Committee recommends that law enforcement offices and agencies:
1. Provide education for law enforcement officers regarding the nature of
the crimes of rape and sexual assault, similar to the education programs
recommended above for court personnel and district attorneys.
2. Provide survivors with interpreters who are sensitive to ethnic and
cultural issues and the emotional needs of sexual assault survivors at all
stages of the investigation.
3. Make efforts to reduce the number of interviews that survivors are
subjected to during the investigation and trial.
4. Investigate acquaintance rape and sexual assault cases with the same
vigor as stranger rape and sexual assault cases.
5. Provide survivors with information on the availability of special
assistance programs.
6. Work with a sexual assault response team.

449

SEXUAL ASSAULT

ENDNOTES
············································

450

1

While the Committee recognizes that not all victims are survivors, many victims and their advocates
prefer the term “survivor,” which connotes strength and perseverance, to the more negative term
“victim,” which is considered stigmatizing and suggests helplessness. Thus, the Committee has
chosen to use the term survivor in keeping with much of the current literature and commentary on
sexual assault.

2

D.G. Kilpatrick, C.N. Edmunds and A. Seymour, Rape in America: A Report to the Nation,
Arlington, Virginia: National Victim Center, 1992 [hereinafter Kilpatrick, et al.].

3

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Publications,
1999 National Crime Victimization Survey (NCVS) 2000.

4

National Institute of Justice and the Centers for Disease Control, Research in Brief, Findings from
the National Violence Against Women Survey, November 1998.

5

Kilpatrick, et al., supra.

6

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sourcebook of
Criminal Justice Statistics, 1999.

7

A Vision to End Sexual Assault, The California Coalition Against Sexual Assault (CALCASA)
Strategic Forum Report, p. ii (2001), attached in Appendix Vol. III [hereinafter CALCASA Report].

8

U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal
Victimization 1999: Changes 1998–1999 with trends 1993–1999, August 2000.

9

Bowker, L., Women as Victims: An Examination of the Results of L.E.A.A.’s National Crime
Survey Program, Women and Crime in America (1981).

10

2000 Annual Uniform Crime Report, Crime in Pennsylvania,
< http://ucreport.psp.state.pa.us>.

11

Pennsylvania Coalition Against Rape Annual Service Statistical Report 2002.

12

Id.

13

CALCASA Report, supra at 13.

14

Vertical prosecution is a “method of handling a case whereby a single prosecutor or prosecution
unit is responsible for conducting the case from start to finish, including the sentencing phase.”
CALCASA Report, supra at 47.

15

While the survey respondents did not report a difference in “results” of a trial when advocates
accompanied survivors during the trial, survivors themselves reported the presence of advocates to
be critical to their needs during trial.

16

Acquaintances included family members (parents, children, and spouses) as well as friends,
neighbors and casual acquaintances.

17

The psychological effects of sexual assault are closely related to anxiety and depression disorders.
The chances that a woman will develop post-traumatic stress disorder (PTSD) after being raped are
between 50–90 percent. Ending Violence Against Women, Population Reports, Population
Information Program, Center for Communication Programs of the Johns Hopkins Bloomberg
School of Public Health.

18

Testimony of Jacqueline Mae Johnson, Erie Public Hearing Transcript, p. 53 [hereinafter Johnson
Testimony].

19

Testimony of Joyce Lukima, Erie Public Hearing Transcript, p.48.

20

Id. at 47

21

Id. at 48–50

22

Id. at 48.

23

Id. at 47–49.

24

Id. at 46.

SEXUAL ASSAULT

25

Id. at 46–47

26

Testimony of Ellen Kerr, Pittsburgh Public Hearing Transcript, p. 214 [hereinafter Kerr Testimony].

27

Testimony of Michelle J. Anderson, Philadelphia Public Hearing Transcript, p. 5.

28

Testimony of Kathlene Russell, Wilkes-Barre Public Hearing Transcript, p. 58.

29

Id. at 48.

30

Id. at 53.

31

Id. at 54.

32

Kerr Testimony, supra at 213.

33

Id.

34

Johnson Testimony, supra at 58.

35

Id. at 59.

36

Testimony of Beata Peck Little, Wilkes-Barre Public Hearing Transcript, p. 39.

37

Testimony of Judy Ariola-Rivera, Wilkes-Barre Public Hearing Transcript, p.40.

38

Testimony of Iraida Afanador, Philadelphia Public Hearing Transcript, pp. 96–97.

39

The most commonly prosecuted sex crimes are rape, involuntary deviate sexual intercourse, sexual
assault, and indecent assault. “Rape” is defined at 18 Pa. Cons. Stat. Ann. §3121 as sexual
intercourse with a complainant:
1. by forcible compulsion;
2. by threat of forcible compulsion that would prevent resistance by a person of reasonable
resolution;
3. who is unconscious or where the person knows that the complainant is unaware that the sexual
intercourse is occurring;
4. where the person has substantially impaired the complainant’s power to appraise or control his
or her conduct by administering or employing, without the knowledge of the complainant,
drugs, intoxicants, or other means for the purpose of preventing resistance;
5. who suffers from a mental disability which renders the complainant incapable of consent; and
6. who is less than 13 years of age.
“Involuntary deviate sexual intercourse” is defined at 18 Pa. Cons. Stat. Ann. § 3123 as deviate
sexual intercourse with a complainant:
1. by forcible compulsion;
2. by threat of forcible compulsion that would prevent resistance by a person of reasonable
resolution;
3. who is unconscious or where the person knows that the complainant is unaware that the sexual
intercourse is occurring;
4. where the person has substantially impaired the complainant’s power to appraise or control his
or her conduct by administering or employing, without the knowledge of the complainant, drugs,
intoxicants, or other means for the purpose of preventing resistance;
5. who suffers from a mental disability which renders him or her incapable of consent;
6. who is less than 13 years of age; or
7. who is less than 16 years of age and the person is four or more years older than the complainant
and the complainant and person are not married to each other.
“Sexual assault” is defined at 18 Pa. Cons. Stat. Ann. § 3124.1 as sexual intercourse or deviate
sexual intercourse with a complainant without the complainant’s consent.
“Indecent assault” is defined at 18 Pa. Cons. Stat. Ann. § 3126 as indecent contact with the
complainant.

451

SEXUAL ASSAULT

“Forcible compulsion” is defined at 18 Pa. Cons. Stat. Ann. § 3101 as compulsion by use of
physical, intellectual, moral, emotional or psychological force, either express or implied. The term
includes, but is not limited to, compulsion resulting in another person’s death, whether the death
occurred before, during, or after sexual intercourse.

452

40

Commonwealth v. Berkowitz, 415 Pa. Super. 505, 519, 609 A.2d 1338, 1345 n.5 (1992) vacated in
part on other grounds, 537 Pa. Super 143, 641 A. 2d 1161 (1994).

41

Brief for Amici Curiae in Commonwealth v. Fischer, filed by The Women’s Law Project,
Pennsylvania Coalition Against Rape, et al. In Support of Appellee, filed October 22, 1999, p. 15.

42

Summary of Michigan’s 1989 Gender Report The Court’s Response to Violence Against Women,
p. 114.

43

Final Report Colorado Supreme Court Task Force on Gender Bias in the Courts, p. 90 (1990).

44

The Gender Bias Task Force of Texas Final Report, p. 82 (1994) [hereinafter Texas Report].

45

The Final Report of the Washington State Task Force on Gender & Justice in the Courts, p. 39
(1989) [hereinafter Washington Report].

46

CALCASA Report, supra at 16.

47

Nebraska Supreme Court Task Force on Gender Fairness in the Courts Final Report, p. 60 (1994)
[hereinafter Nebraska Report].

48

Texas Report, supra at 83.

49

Washington Report, supra at 43.

50

Report of the Gender Bias Study of the Supreme Judicial Court, Commonwealth of Massachusetts,
p. 100 (1989) [hereinafter Massachusetts Report].

51

Nebraska Report, supra at 61.

52

Sources consulted for this review included: CALCASA Report, supra; Massachusetts Report, supra;
Nebraska Report, supra; Texas Report, supra; and Washington Report, supra.

53

This program should include:
a. Training sessions that emphasize hypothetical situations regarding bail conditions, motions in
limine, jury instructions, and sentencing; followed by a discussion;
b. Use of materials developed by The National Judicial Education Program for the seminar
“Understanding Sexual Violence: The Judicial Response to Stranger and Non-Stranger Rape and
Sexual Assault”;
c. Education regarding the nature of the crime of rape, the psychology of offenders, the prevalence
of and seriousness of acquaintance rape, rape trauma syndrome, child sexual assault and delayed
reporting, drug facilitated sexual assault, racial stereotypes and cultural impediments to
reporting, and the long-term psychological injury to rape survivors;
d. Training and sensitizing judges to the difference between vigorous cross-examination that
protects the defendant’s rights and questioning that includes improper sex stereotyping and
harassment of the survivor; and
e. Training on the Survivor Bill of Rights.

54

The training should include such topics as the psychology of offenders, the prevalence of and
seriousness of acquaintance rape, rape trauma syndrome, child sexual assault and delayed
reporting, drug-facilitated sexual assault, racial stereotypes and cultural impediments to reporting,
and the long-term psychological injury to rape survivors.

55

Such examiners are specially trained registered nurses or physicians who provide comprehensive
care, timely collection of forensic evidence, and testimony in sexual assault cases.

12

FAMILY LAW

454

INTRODUCTION

457

SYNOPSIS OF FINDINGS

460

GENERAL FINDINGS

487

OTHER TASK FORCE FINDINGS

493

CONCLUSION

494

BEST PRACTICES

496

RECOMMENDATIONS

499

ENDNOTES

FAMILY LAW

INTRODUCTION

454

More Pennsylvania citizens come into contact with the Commonwealth’s
judicial system through the family law court system than through any other
avenue.1 Yet, family law issues are often viewed as less prestigious and less
important than other legal cases.2 The diminished status of the family law
system is reflected in the lack of economic resources invested into many of
Pennsylvania’s family law courts and by the sometimes confusing legal and
procedural policies encountered by litigants.3 Many courts that hear family
law cases require families to tell their stories multiple times to different
judicial officials, usually in a piecemeal fashion that is financially and
emotionally costly to litigants.4
The low prestige assigned to the family law system impacts directly on the
quality of services provided to all family law litigants, but the Committee
discovered that low-income individuals are most severely affected. Lowincome litigants, especially those proceeding pro se, are confronted with a
complex and often bewildering court system.5 These low-income litigants
are primarily women, often minorities, and often economically dependent
spouses.6 As such, they experience a triple bias—racial, gender, and
economic—within the judicial system. As family law attorney Rebecca
Ardoline testified at the State College public hearing: “When there are
gender biases, when there are racial biases, they’re made worse by class
prejudices.”7

Focus of Inquiry
The Committee focused its family law study on three aspects of the family
law system within Pennsylvania. First, the Committee examined whether
low-income female and minority litigants encountered difficulties in gaining
access to the family court system. Second, the Committee sought to
evaluate how Pennsylvania’s domestic relations laws and procedural rules
affected low-income litigants, especially women and members of minority
groups. Third, the Committee conducted an inquiry into how minority and
female litigants fared within the dependency system, compared with other
participants. The inquiry ranged from the adequacy of court facilities to an
examination of whether cultural stereotypes and biases affect the outcomes
of cases involving minority and female litigants.

FAMILY LAW

Sources of Information
The Committee acquired primary source information through public
hearings, roundtable discussions, and litigant surveys. Additionally, a
survey was commissioned to obtain information about court resources,
practices, and procedures. The survey was distributed to a representative
sampling of 15 Pennsylvania counties.
The public hearings, conducted throughout the Commonwealth, provided
an opportunity for court personnel, practitioners, interest groups, and
private individuals to relate experiences and concerns regarding racial
and gender bias in family courts and juvenile dependency proceedings.
In addition to the public hearings, five roundtable discussions were held
with experienced and well-regarded family law attorneys, judges, and
social service agency personnel. In Pittsburgh, one roundtable discussion
concentrated exclusively on dependency issues, and another was devoted
to general family law concerns. In Philadelphia, one roundtable discussion
focused on substantive and procedural family law issues, while the other
concentrated on issues of access to the legal system. The roundtable
discussion in State College addressed legal access as well as procedural
issues affecting low-income female and minority litigants.
Surveys were also distributed to former litigants in family law cases in
Allegheny, Bucks, Chester, Montgomery, and Philadelphia counties. The
surveys were designed to evaluate the experiences of pro se litigants in
accessing their county’s family court. A copy of the survey instrument
and a summary of the results are attached in Appendix Vol. III.
The Committee commissioned The Pennsylvania State University’s Statistical
Consulting Center to produce an extensive case processing survey of the
Commonwealth’s family law courts. The survey was distributed to a
representative sample of 15 large, small, urban, and rural counties: Allegheny,
Bradford, Beaver, Bucks, Butler, Cameron, Clarion, Elk, Dauphin, Delaware,
Indiana, Juniata, Perry, Lancaster, and Philadelphia. Only Clarion County
failed to respond; Juniata and Perry counties returned a combined response,
as did Elk and Cameron counties. Copies of the survey instrument and the
analysis of the results are attached in Appendix Vol. III.

455

FAMILY LAW

456

The Committee also gathered information from other recent reports
concerning Pennsylvania’s family and dependency court systems. These
reports included the Report of the Pennsylvania Bar Association Task Force
on Family Court Reform (2000); the Juvenile Law Center’s Promises Kept,
Promises Broken: An Analysis of Children’s Right to Counsel in Dependency
Proceedings in Pennsylvania (2001); and A Report by Philadelphia’s Public
Interest Bar and Advocacy Community on Dependent Court Resources and
the Need for Judges (2001). The Committee reviewed other state task force
reports on gender and racial bias in the family court system, as well as a
variety of articles published in various social science and legal journals about
these issues.

FAMILY LAW

SYNOPSIS OF FINDINGS
Among the findings of the Committee were:
1. Low-income litigants, who include a disproportionate number of women
and minorities, are often disadvantaged in the family court system
because they are not represented by counsel. Specifically, they often do
not receive sufficient and comprehensible information concerning the
availability of reduced fee and pro bono representation, nor do they
receive complete information about their procedural and substantive
rights and responsibilities. If the litigants have limited proficiency with
the English language, the obstacles become even more daunting.
2. The application of some of Pennsylvania’s substantive family laws can
have a particularly negative impact upon low-income litigants’ legal
rights and remedies. For example, the alimony that judges order to
compensate the economically dependent spouse is often insufficient
and of too short a duration. Alimony awards are often made with
little consideration of the factors set forth in the Divorce Code. In the
absence of consistent guidelines, alimony requests are frequently denied
or, if granted, are insufficient to address the needs of the dependent
spouse. Incorrect applications of the law, in conjunction with minimal
or non-existent alimony awards, can go unremedied because the
dependent spouse has inadequate resources to file an appeal.
3. Support cases are generally not resolved for several months, and
sometimes not for years. During that time, the parties may have to
attend numerous hearings. This presents significant difficulties for lowincome litigants who may incur childcare and transportation costs and
lost wages for missed work, in addition to having to pay attorney’s fees.
The award of a support order, even with a provision for arrears,
generally does not make the dependent spouse whole.
4. Low-income litigants encounter financial obstacles that inhibit their
access to the family courts. Filing fees, attorney’s fees, and fees for
masters or other special personnel or programs are direct costs that
low-income litigants often cannot bear. The addition of indirect costs,
such as childcare, transportation, and lost wages for missed work,
along with delays in receiving support, alimony, and equitable
distribution of assets, can result in further impoverishment of the
dependent spouse.

457

FAMILY LAW

5. Low-income litigants encounter procedural obstacles that impede their
ability to litigate their family law cases. The multiple and fragmented
nature of hearings in family court and dependency court places a
considerable burden on hourly workers whose employment is imperiled
by frequent absences.

458

6. In family and dependency proceedings, cultural and gender stereotypes
and biases sometimes affect female and minority litigants. For example,
some report being treated as “less than equal” to more affluent
litigants; being held to stricter behavioral standards than men; and
being subjected to inequitable decisions because of racial and cultural
biases.
7. Several problems primarily affect minority litigants in child dependency
proceedings:
•

African American children may be at risk of physical harm because
some caseworkers believe corporal punishment is acceptable in the
African American community. In such cases, African American
children may not be removed from their homes while white children
under similar circumstances would be removed from their parents
for their protection;

•

Inconsistencies in the application of the law, coupled with cultural
biases and inadequate representation and facilities, can have a
disproportionately negative impact upon minority and female
litigants. For example, policies that promote the adoption of
relatives have a substantial negative impact upon minority litigants,
who often do not believe it to be an appropriate remedy for the
issues surrounding dependent children. On the other hand, minority
litigants are discouraged from seeking to become foster and adoptive
parents by regulations which foster the perception that criminal
records, no matter how remote or insignificant, bar them from
parenthood.

•

Parents are not always advised of their right to be represented by
counsel. The guardians ad litem appointed for the children often
do not adequately represent the children or their interests. Many
guardians do not meet their clients until moments before the hearing
and do not devote sufficient time or resources to preparing their
cases. They are also under-compensated for their work.

FAMILY LAW

8. Many members of the legal and lay communities expressed the opinion
that the family and dependency court systems are accorded little
respect. This impression is borne out by, among other things, the
substandard condition of facilities and the fragmentation of hearings.
9. The courts rarely grant advance distributions of marital assets. Because
most non-consensual divorce cases take more than two years for assets
to be distributed, the court’s reluctance to enter interim awards places a
burden on the economically dependent spouse and may inhibit his or
her full access to the legal system. The spouse controlling the marital
estate may also dissipate the assets, leaving no recourse for the
dependent spouse.
10. Family courts infrequently award attorney’s fees, and when fees are
granted, they are often inadequate. As a result, low-income litigants are
often unable to hire and retain counsel. In dependency court, the low
rate of pay makes it difficult to attract court-appointed attorneys to
provide effective counsel.

459

FAMILY LAW

GENERAL FINDINGS
LOW-INCOME LITIGANTS OFTEN DO NOT RECEIVE
SUFFICIENT AND COMPREHENSIVE INFORMATION
THAT WOULD ENABLE THEM TO NAVIGATE THE
FAMILY COURT JUDICIAL SYSTEM SUCCESSFULLY.

460

A significant number of low-income litigants are women and minorities.8
They often receive inadequate assistance from the courts as they make their
way through the legal system. Their problems are exacerbated when they
are unrepresented or when they are held to the same standards as
represented litigants.

Public hearing testimony
Most family law litigants in Pennsylvania are not represented by counsel.9
In Philadelphia County, an attorney of record was listed for less than
8 percent of the 739,000 people listed in a recent domestic relations
database.10 By one account, 92 percent of defendants are unrepresented
in child support cases in Philadelphia.11
At public hearings throughout Pennsylvania, attorneys and litigants testified
that the judicial system often provides little or no help to pro se litigants who
are either initiating legal proceedings or responding to actions against them.
Caren Bloom, a legal services attorney from central Pennsylvania, reported
that in some central Pennsylvania counties, court employees are prohibited
from providing the type of legal information pro se litigants need.12
A lack of assistance can severely affect pro se litigants who have poor
English speaking or writing skills. Teenage mothers often drop out of
school and later may experience difficulty in comprehending written
instructions, or in completing the requisite legal pleadings for their cases.13
Litigants with a limited command of English may experience difficulty
articulating their concerns during hearings. As was discussed in the chapter
on domestic violence, one judge denied a woman’s request for a translator
and then denied her protection from abuse petition in a meritorious case
because he said he could not fully understand her testimony.14

FAMILY LAW

Speakers at the public hearings believed that judges were obligated to assist
pro se litigants. Based on those perceptions, they felt the judges held them
to the same standards as litigants represented by experienced counsel.15 In
addition, the speakers said some judges and opposing counsel made it a
practice to interrogate women aggressively when they appeared without
counsel, making them fearful of returning to court.16 Attorney Ardoline,
who represents low-income clients in central Pennsylvania, reported that
women who were unable to afford legal representation at support hearings
had been denied the right to testify, and had been turned away from the
court when their physical disabilities prevented them from entering the
domestic relations offices.17

Roundtable discussions
The theme of the relationship among poverty, race, and indigency was
echoed in the Philadelphia roundtable discussions. Attorneys participating
in the roundtable on substantive and procedural barriers noted that a
disproportionate number of pro se litigants were women or members of
minority groups.18 Some of the attorneys asserted that judges allowed pro
se litigants too much leeway, while others said they valued the assistance
that judges provided.19 Most participants agreed, however, that pro se
litigants were at a distinct disadvantage in the courtroom.
As reported in the chapter on litigants with limited English proficiency,
attorneys said non-English speaking litigants were especially disadvantaged
when the court did not make interpreters available. Some judges ordered
the attorney, a witness, or even the opposing party to translate the litigant’s
testimony. It was feared that this practice could alter the outcome of a case,
as the personal agenda of the non-professional translator could significantly
affect the translation.20 One attorney speaking at the State College
roundtable discussion also noted that when people struggled to speak
English it was difficult for them to accurately convey their thoughts,
resulting in the loss of the fine points of their testimony.21

Participants in the State College roundtable also stated
that many courthouses in small counties had waiting
rooms too small to accommodate the needs of the
court. In other counties, family court proceedings were
relegated to overcrowded, sub-standard facilities
separate from the main courthouses.

461

FAMILY LAW

Philadelphia roundtable participants noted a general lack of information
available to litigants concerning substantive and procedural family law
issues. Because many pro se litigants have limited reading skills, they need
alternative methods of information delivery.22 Even for literate litigants, the
complexity of the system is confusing. Procedures vary from one judge to the
next. Written information is often inadequate.23

462

Participants in the State College roundtable also stated that many
courthouses in small counties had waiting rooms too small to accommodate
the needs of the court.24 In other counties, family court proceedings were
relegated to overcrowded, sub-standard facilities separate from the main
courthouses. Many speakers said the condition of the courtrooms and poor
scheduling reflected the lack of respect granted to domestic law cases.25
An attorney at the Philadelphia roundtable on access issues recounted
hearing a judge say he presided over “pervert’s court.”26 The lack of respect
for family law was also discussed with regard to judges, who were said to
be disinclined to hear testimony in “pots and pans” cases in which the lowincome parties had few assets to distribute.27
Roundtable participants reported that family courts were also understaffed,
and the court facilities were often inadequate. Some family law facilities
had dirty halls and restrooms, which detracted from the dignity of the
court. 28 The lack of prestige spilled over to judges who, upon election,
were typically assigned to family court before transferring to other
divisions. As a result, the least experienced judges usually preside over
family court cases.29

Litigant interviews
Of the litigants surveyed, almost half proceeded pro se. One reported that
she was not permitted to file her complaint. Half of the pro se litigants
reported receiving no assistance in understanding court procedures.30
All litigants were asked about the types of assistance available at
courthouses. One county had no information desk. Some courthouses
provided a telephone recording of general information regarding court
hours, location, case scheduling, and other pertinent information. One
litigant said it took persistence to obtain help by telephone. Half of the
litigants reported that the assistance provided was helpful; half reported
that it was not. Half of the litigants said that the court did not disseminate
information regarding the availability of pro bono counsel.

FAMILY LAW

County surveys
Elk County has no formal pro bono program. Perry/Juniata, Dauphin,
and Lancaster counties refer indigent litigants to their local legal aid
programs. Bradford, Indiana, Dauphin, Lancaster, Delaware, Bucks, and
Allegheny counties supply representation for some cases—generally support
cases—through the offices of the county attorney, district attorney, and/or
public defender. Elk, Indiana, Beaver, Dauphin, Lancaster, Delaware, and
Philadelphia counties make referrals through bar associations or courtappointed attorney programs, which provide some representation to
indigent litigants. Perry/Juniata and Allegheny counties have established
programs to assist pro se litigants in pursuing their claims.31
In each county in the survey, respondents said litigants were informed
about how to obtain counsel. When asked how the information was
disseminated, three counties failed to provide a response; three counties
said they provided written information; and three counties said they
provided both oral and written information. Oral information alone was
given in two counties, and in one county the information was provided
only upon request.32
Counties were asked to estimate what percentages of indigent litigants were
able to obtain pro bono assistance or representation. Only three counties
provided meaningful responses to this question: Perry/Juniata Counties
reported that half of their litigants obtained pro bono assistance or
representation, and both Lancaster and Delaware counties reported that
this assistance was available to approximately 90 percent of the qualifying
litigants.33
All counties reported some form of telephone information assistance for
family court litigants. Seven counties reported having recorded information
about court locations and hours of operation. Eight counties reported that
a person was available to provide childcare information. Twelve counties
reported that a person was available to discuss case scheduling information,
and 10 counties reported that a person was available to discuss court
procedures with pro se litigants. Every county in the survey had a person
available to provide information about language and disability
accommodations.34

463

FAMILY LAW

LOW-INCOME LITIGANTS ENCOUNTER FINANCIAL
OBSTACLES THAT INHIBIT THEIR ACCESS TO THE
FAMILY COURTS.

464

A low-income litigant’s progress through the family court system can be
halted by court costs, attorney’s fees, and special costs such as master’s fees.
Some counties are reluctant to award attorney’s fees and many counties have
inadequate pro bono attorney programs. Additionally, family court litigation
often involves several hearings, which result in additional costs that the lowincome litigant cannot afford.

Public hearing testimony
The general consensus at the public hearings was that women in many
family court cases have little income and few economic resources, while
men tend to have higher incomes and greater economic control. The basic
inequity is exacerbated by the multitude of family court hearings and extra
costs that can bring hardship to the financially dependent spouse, usually
the woman.
In rural counties, pro bono legal assistance is often unavailable35 and there
are court fees that can limit citizen access to the judicial system. Attorney
Ardoline, testifying in State College, told of counties that require up-front
payment of fees in domestic violence cases before a de novo hearing will be
scheduled before a judge.36

Roundtable discussions
Lawyers commented on the costly nature of family law cases.37 Private
attorneys and legal aid attorneys agreed that legal aid organizations simply
do not have the financial resources to represent all low-income litigants,
and the pro bono funding is too limited to meet the needs of the remaining
clients.38 While court costs can be waived if in forma pauperis (IFP)
standards are met, many counties are not able to provide sufficient
information about IFP petitions.39
Attorneys in rural counties noted that judges rarely awarded attorney’s
fees. This placed an unreasonable burden on the financially dependent
spouse, especially when the primary wage earner intentionally delayed and
complicated the case. The economically dependent spouse could be forced
into poverty, and without an attorney, he or she could not fight back in
court.40 Urban attorneys believed that attorney’s fees awards could act as
a carrot, to spur settlement of a case, or as a stick, to thwart unnecessary
litigation.41

FAMILY LAW

Private attorneys and legal aid attorneys agreed that
legal aid organizations simply do not have the financial
resources to represent all low-income litigants, and the
pro bono funding is too limited to meet the needs of
the remaining clients.
Courthouses in rural counties are not easily accessible by public transportation,
creating hardship for people without cars.42 In addition, most courthouses
are open only during business hours, which can mean missing work to
perform court business—a prospect that low-income litigants can ill afford.43
Practitioners in five rural counties also reported that their court systems did
not provide childcare for litigants. The cost of private childcare during court
hearings generally falls upon the custodial parent, most often the mother, who
is usually the economically dependent spouse.44

Litigant Interviews
The litigants surveyed reported a wide variation in the litigation costs in
family law. Some said they could not afford the filing fees, or that they
refrained from filing certain pleadings because they could not afford the
costs. Only 33 percent said they had received information about fee
reductions or waivers based on income. A small number of litigants filed
appeals. More said they could not afford to appeal, and one said the cost of
the transcript was too expensive. One litigant reported the cost of litigation
compelled her to settle her case before she otherwise would have.
Only one litigant reported that the court had evening or weekend hours of
operation, and that was just for the filing of pleadings. Most litigants missed
work to attend court hearings. Approximately half of the litigants reported
receiving information about the availability of childcare; the others did not.
Of those who needed this service, only a few reported that it was available
when needed.

County Surveys
Elk, Indiana, and Beaver counties reported that their local legal aid
programs provided no representation for indigent litigants in family law
cases. Philadelphia, Perry, and Delaware counties reported that their legal
aid programs provided representation for all types of family law cases. The
remainder of the counties said that their legal aid programs represented litigants
in only one or two types of domestic relations cases, with Dauphin County’s
program limited to assisting only in the preparation of custody complaints.45

465

FAMILY LAW

Of the responding counties, only Allegheny, Philadelphia, and Dauphin
Counties provided childcare for litigants. This service was provided in all
three counties at no cost. 46

466

Most counties reported that no court services were available during nonbusiness hours. However, Perry/Juniata, Bucks, Allegheny, and Philadelphia47
provided for emergency protection from abuse services outside regular
business hours. Delaware County indicated the availability of some services,
but did not provide a breakdown of these services. Allegheny and Philadelphia
counties reported some evening hours for support and pretrial matters.48
Most counties reported charging special fees to litigants for master’s or
mediation services. A divorce master in Perry/Juniata counties cost $740.
Mediators in Bradford charged $90 per hour; a half-day master’s trial in
Lancaster County cost $475. Delaware and Bucks counties reported no
charges for these services,49 and Philadelphia County reported no charges
for any services except those of divorce master.50

LOW-INCOME LITIGANTS ENCOUNTER PROCEDURAL
OBSTACLES THAT IMPEDE THEIR ABILITY TO LITIGATE
THEIR FAMILY LAW CASES.
Multiple hearings, drawn out over months or years, can place undue
economic and emotional burdens on litigants who have insufficient resources
to fully litigate their cases. Procedural inconsistencies and confusion within
the family court system make it difficult for low-income litigants to proceed;
wealthier litigants suffer no such consequences because they are often
represented by attorneys who fully understand court procedures and use
them to the clients’ advantage.

Public hearing testimony
Pennsylvania’s family court system is unquestionably overloaded and
under-funded. It attempts to manage its enormous caseload by scheduling
multiple hearings over many months, resulting in delays that prove costly
to an economically dependent spouse.51
A fully-contested divorce, including related support and custody issues,
can result in 15 different hearings before 15 different individuals.52 The
time delays expose family law litigants to lengthy emotional conflict and
a greater risk of psychological injury.53

FAMILY LAW

Delays also increase the cost of litigation. Even when hourly legal rates
are modest, total fees soon become overwhelming as delays and court
inefficiencies unreasonably extend the proceedings.54 Witnesses testified that
many economically dependent women are forced to settle their claims for less
than their potential awards because they no longer have the financial resources
to pursue their cases.55 An experienced family law practitioner noted that the
lengthy delay between the filing of the support complaint and the issuance
of the support order is not completely rectified by the entry of a retroactive
support award.56 Delays and multiple support hearings result in lost wages,
increased childcare expenses and large legal fees, which are not recovered
by an award of arrears.57
At least one practitioner and several litigants reported that fragmented
hearings also severely impact wealthier female litigants who are, nevertheless,
the economically dependent spouses.58 The independent spouse, usually the
husband, can manipulate the legal system to delay hearings, stall discovery,
and hide assets. Women in these situations need a rapid court process in
which they are awarded attorney’s fees on an interim basis; such awards are
necessary if the women intend to pursue discovery and locate assets.59 Wives
in more affluent households who are not awarded attorney’s fees may be
unable to afford representation, leaving them to appear pro se before
formidable legal opponents.
Complex court procedures are especially confusing to persons seeking
access to the legal system without representation. Practitioners stressed
the dramatic disparity in procedures from county to county.60 One attorney
drew a correlation between these problems and the issues facing litigants.
If attorneys, despite their legal training and experience, have difficulty
deciphering court rules and procedures in the various counties, how can
unsophisticated pro se litigants navigate a complex system that is
unfamiliar to them?61
According to Mary Cushing Doherty, a Montgomery County attorney who
has practiced in the area of family law for 25 years, Pennsylvania’s Domestic
Relations Procedural Rules Committee attempted to address the disparity in
county rules of procedure in what is known as “Recommendation 55” in
2000. The committee’s effort was met with a storm of protest, however, from
the judiciary, family law practitioners, and Domestic Relations Department
personnel.62 In response, the committee issued a revised Recommendation 55.
The clear purpose of each version of Recommendation 55 is “to make it easier
for the public to gain access to the Family Court system and to assure that
family matters are concluded fairly and expeditiously.”63

467

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468

Recommendation 55 has not yet resulted in new rules and they are not likely
to be issued soon, according to Doherty, because concerns continue to be
expressed about them by the judiciary and many lawyers. Doherty explained
that one of the major roadblocks is that “Individual counties do not wish to
change procedures that they find satisfactory in their specific counties. Yet
the differences county to county only frustrate clients of modest means and
the lawyers who try to serve them. One is not able to navigate the system
unless they are a local attorney who knows the local rules, procedures, and
courtesies.”64 The revised Recommendation 55 suggests consolidated intake
for support and custody matters and an ability to settle a custody case at the
same time as the support case is settled. Doherty urged this Court to support
efforts such as Recommendation 55 that would lend a great deal of assistance
to lower-income family court litigants, the majority of whom are women and
minorities.

Roundtable Discussions
Family law disputes can result in a long series of court proceedings.
Separate hearings are usually held for support, custody, bifurcation of a
case, equitable distribution, and other issues, inconveniencing all litigants
but especially affecting lower-income litigants.65
Resolution of a single issue is often fragmented into several hearings. Centre
County attorney Caren Bloom discussed a case that took 16 days over a
two-year period.66 Delays occur when courts fail to allot sufficient time for
a hearing, or, especially in counties with no separate family division, when
other civil cases receive priority scheduling. The practitioners questioned
why other civil cases are heard in one continuous interval until completion,
while a custody case is bumped and rescheduled so that the civil trial may
proceed.67
Frequent continuances can create an economic crisis for a litigant with
marginal finances.68 In addition, continuances delay the ultimate resolution
of the case, which can result in financial problems for the dependent spouse.69
Multiple hearings also may bring a variety of judges and factfinders to preside
over aspects of one case; this may also occur in court systems that rotate
judges routinely from case to case. This practice places a burden upon
litigants, who may be required to testify many times regarding the same
facts. As a result, the economically dependent party incurs attorney’s fees
and misses work in order to testify about matters that may already be on the
record, or may even have been resolved.70

FAMILY LAW

Attorneys complained of the “cattle call” method of scheduling cases,
which poses a serious problem for an economically dependent litigant who
must appear with everyone else at 9:00 a.m. but not does get into court
until 3:00 p.m., which again is a costly prospect.71 “Cattle calls” favor
parties with representation because cases involving attorneys are usually
called first.72 The unrepresented litigant, who is the least financially able to
miss work, is forced to wait the longest. Sometimes there are unwritten
rules that allow attorneys to estimate when their cases will be heard, such
as the assignment of numbers to cases in Philadelphia, but individuals
appearing pro se are not privy to this information.73

Litigant Interviews
Litigants reported a range of one to 20 visits to the courthouse before
finalization of their family law litigation, with the entire process lasting
from one to three years. The time from first filing to first hearing ranged
from three days to 18 months.

County Survey
The counties were asked to calculate the average amount of time between
the filing of a complaint and the initial hearing for divorce, custody, and
support. Four counties, including Allegheny, provided no response. The
other counties’ responses ranged from 30 days to four months, depending
on the type of case.74
The counties without separate family divisions were asked if family law
cases were assigned to a particular judge. Four counties said they were not,
and that all judges heard some family law cases. (Some counties had only
one or two judges). In the counties with more judges, such as Lancaster and
Delaware, the family law cases were assigned to certain judges, but not to
all judges.75

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FAMILY LAW

THE MISAPPLICATION OF SOME OF PENNSYLVANIA’S
SUBSTANTIVE FAMILY LAWS CAN HAVE A
PARTICULARLY NEGATIVE IMPACT UPON LOW-INCOME
LITIGANTS’ LEGAL RIGHTS AND REMEDIES.
Alimony

470

While the Pennsylvania Divorce Code permits the
award of alimony, witnesses reported that many judges
were reluctant to award alimony in an adequate
amount or for a sufficient duration.
Public Hearing Testimony
Attorney Carol Mills McCarthy, who provided written testimony in
Pittsburgh, said substantial numbers of women were left with little income
and almost no resources by the time their divorces were finalized, while
men, who tended to have higher incomes, were permitted by the court to
retain greater control over the family’s economic resources and assets.76
McCarthy said the term “economically dependent spouse” might appear
to be gender-neutral, but, in practice, applied primarily to women, who
were commonly the parent at home raising the children and managing the
family. When the economically dependent spouse faced a divorce after
years of less than full-time employment, she typically found herself at a
disadvantage in attempting to earn an income that approached what she
would have earned while employed on a full-time basis throughout the
marriage. Alimony is designed to fill this gap, but in the opinion of
McCarthy and other attorneys who testified at the public hearings,
alimony is simply not awarded fairly or consistently.77
While the Pennsylvania Divorce Code permits the award of alimony,78
witnesses reported that many judges were reluctant to award alimony in an
adequate amount or for a sufficient duration. Bloom, an attorney at MidPenn Legal Services, testified that alimony was rarely awarded in at least
one rural county. When it was granted, it was “rehabilitative” in nature
and lasted for two to three years at best, until the woman could “get on
her feet.”79 She described a case in which a husband earned more than
$100,000 per year while his wife was a homemaker with a small, in-home
typing business from which she earned less than $20,000 per year.
Reasoning that the income from her typing service rendered her selfsufficient, the judge decided that alimony was unnecessary.80

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Public hearing witnesses testified that family courts often failed to take into
account the reality that, even after divorce, husbands are able to recover
financially at a much quicker pace than wives because of the greater
opportunities afforded to them in the workplace, especially when they are
not custodial parents. A wife who has been out of the work force and who
also has the primary responsibility for the children has a difficult time
finding work that will pay her sufficiently, let alone a job that will allow
the flexibility necessary for carrying out her parenting responsibilities.81
In her written testimony, referenced previously, Attorney Doherty commented
upon a recent case, Mascaro vs. Mascaro, 803 A.2d 1186 (Pa. 2002), in which
the Supreme Court of Pennsylvania held that the support guidelines’ formula
of income sharing was applicable to economically dependent spouses married
to high-income spouses, without the burden of proving budgetary need.82
Doherty explained that previously, if the combined income of husband and
wife exceeded the monthly net of, for example, $15,000 per month, the
dependent spouse had to prove actual need to establish the support award.
This was in contrast to the families with monthly net income of $15,000
or less, in which case the two spouses’ net incomes were compared, and
the higher income spouse (after deduction for child support), would pay
30 percent of the excess income to the dependent spouse. Doherty stated
that, essentially, the Supreme Court of Pennsylvania in Mascaro said that
the high income spouse should enjoy the income-sharing model of the
support rules.83 She suggested that a similar rationale should be applied
for spouses requesting alimony, reflecting the reality that, because of their
years spent as home managers and child nurturers, they have earned their
entitlement to an alimony award sufficient in both amount and duration.84
Doherty noted that proposed changes in the areas of prenuptial agreements,
anticipatory distribution of assets pending litigation, clarification of valuation
of retirement assets, and other legislative reforms which would help dependent
spouses and pro se litigants were introduced to the Legislature in Senate Bill
1084, which is currently pending. To the disappointment of many attorneys
who worked on it, Doherty stated, Senate Bill 1084 did not include proposals
on statutory reform of alimony provisions. She indicated, however, that
another alimony proposal is being drafted, so the Legislature is considering
not only reform of the equitable distribution and divorce provisions, but also
reform of the alimony statute. The alimony reforms should provide more
uniformity in the awards of alimony in the “typical case” and mandate

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judicial consideration for deviation, so judges would have to justify why the
“guidelines” were not being followed.85
Doherty concluded: “Whether the reform comes through legislation or rule
change, the promulgation of alimony guidelines, similar to those currently
in effect for spousal support, would provide meaningful and uniform
substantive guidance to judicial officers who are responsible for calculating
alimony awards.”86

472

In terms of the unique needs of women and racial minorities, Doherty also
commented that under the current system, the general statutory guidelines
for alimony are often resolved at the divorce master’s hearing.87 In counties
of medium to large size, Doherty explained, divorce masters handle all of the
negotiations, and sometimes conduct the only hearing of record. Only clients
of economic means can afford to appeal the master’s recommendation,
according to Doherty. In the small counties, while judges will handle the
alimony decisions, standards differ from county to county. In some counties,
the judges are loath to issue alimony. Alimony guidelines will benefit people
of means, and will benefit men who may have suffered from an unduly high
alimony award. Yet, Doherty stated, it is the clients who cannot afford
attorney advocacy and the appeals process who currently suffer most from
the lack of uniformity and lack of clear guidelines.88

Roundtable discussions
An attorney from a central Pennsylvania rural county observed that the
economically dependent spouse’s age and possible disability were the
only factors used to determine whether alimony would be granted; earning
potential became relevant only after that initial determination was made.89
Other attorneys indicated that the court’s primary concern was not the
stay-at-home spouse’s contribution to the marriage, but whether she had
any possibility of supporting herself. One attorney said: “If you can
support yourself, no matter what your husband makes, you’re not going to
get alimony.”90 Additionally, an experienced attorney practicing primarily
in Montgomery County observed that while judges were now far less
critical of marital misconduct than they had been in the past, they
continued to assess a woman who had had an extramarital affair more
harshly than they would a man.91

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In a roundtable discussion in Philadelphia, attorneys compared alimony
standards and practices from six counties and found each county to be
different. In Bucks County, the litigants, attorneys, and master jointly
attempt to reach an agreement. In Montgomery County, attorneys meet
privately with the master and argue their client’s cases informally; litigants
there do not see the master unless several negotiation sessions fail, after
which a hearing is conducted.92 An attorney stated that alimony was rarely
awarded in Chester or Delaware counties, and that enforcement was
difficult in Delaware County. In Chester County, the master’s report was
generally not received for one year.93 Other attorneys asserted it was
difficult to receive an alimony award in Montgomery County; cases
brought before the master there are not transcribed, so any case appealed
from a master’s recommendation must be retried in its entirety.94
Roundtable participants in State College agreed that the vagueness of
the alimony factors set forth in the Divorce Code allows judges complete
flexibility in making alimony determinations.95 Because there are no consistent
indicators to predict whether and to what degree an alimony award would be
entered, practitioners at the various roundtables said litigants make a costly
gamble when they seek alimony. If there were uniformity or guidelines,
litigants could make informed decisions about the appropriateness of a request
for alimony, which would lead to reduced attorney’s fees, and a reduction of
the courts’ expenditure of time on meritless cases.96 Similarly, the delays and
inconsistencies in these cases lead to increased attorney’s fees, litigation time,
and expense, all of which have a detrimental impact on the economically
dependent spouse, and, ironically, exacerbate her need for alimony.97

County surveys
Respondents were asked in the county survey which factors judges use to
determine the length and amount of alimony awards. Seven counties cited
the factors set forth in the Pennsylvania Divorce Code at 23 Pa. Cons. Stat.
Ann. § 3701(b). Three counties failed to respond or said “unknown.”
Perry/Juniata specified “need, positions, skills, encouragement to selfsufficiency,” while Beaver County specified “length of marriage and the
extent to which…the economically dependent spouse [usually the wife] has
had an opportunity to develop her earning capacity. The economically
independent spouse will have had the entire marriage to develop his.”98
Only Beaver County responded to the question concerning the percentage
of alimony claims granted by the court each year, reporting that 25 percent
of all claims were for five years or less, with another 25 percent terminable
upon the payor’s retirement or attainment of age 62–65; the remainder of
the awards fell into other categories.99

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Ten of 12 counties reported that alimony awards were enforceable through
a mechanism or procedure, usually similar to a support enforcement
proceeding. Two counties did not respond to the question about
enforcement.100

Custody
Public hearing testimony

474

Kevin Sheahan, of the National Congress of Fathers and Children, testifying
at the Harrisburg hearing, said that even though Pennsylvania custody law
is gender-neutral on its face and promotes substantial involvement of noncustodial parents, custody is still awarded to mothers 80 percent of the time,
relegating fathers to limited partial custody or nominal visitation.101 Other
witnesses agreed that mothers are awarded custody significantly more often
than are fathers.102
But some witnesses testified that, while judicial resolution of economic
issues involving family breakups tended to disadvantage women, custody
determinations by family courts were generally gender-neutral. In her
written testimony, McCarthy said: “At least in Western Pennsylvania,
I see all levels of the court trying with all sincerity to act in the best interest
of the children. This might result in many more women being awarded
custody than men statistically. However, the underlying fact that needs to
be analyzed is not simply the gender issue but what the parties did during
the marriage. If the status quo of the marriage was that the wife was the
primary caregiver, a court will give that fact significant weight. This occurs
not because there is a bias that mothers are better parents, but it is what the
family felt that the children needed and, therefore, what the children are
used to. The children should not have their lives disrupted for gender
equality.”103
Several speakers testified that, in custody cases, women were held to
higher standards than men. For instance, it was reported that women
with criminal records or drug or alcohol abuse problems were judged more
harshly than men with the same issues, perhaps because this behavior was
considered “unladylike.”104 Others testified that, because men tend to enjoy
higher standards of living than women, judges favored them. According to
one attorney, even when a mother was the primary caretaker for many
years, the judge’s custody decisions were greatly influenced by a father’s
greater financial ability to send his children to sports camps or buy a bigger
house in a better school district.105 Ardoline, a legal services attorney, said

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in State College that she discouraged her female custody clients from
testifying about their husbands’ failure to pay child support, as at least
one judge would infer from such testimony that the mother was financially
unable to care for her children.106
When the issue of domestic violence was raised in custody cases, witnesses
reported that some judges considered this a tactical maneuver. As discussed
in detail in the chapter on domestic violence, some judges do not recognize
the serious impact domestic violence has on children, and fail to give this
issue the consideration required under the custody statute.107 The chapter
also contains an extensive discussion of the misapplication of the federal
and state statutes in the area of domestic violence. When judges fail to
remove defendants’ weapons, for example, this misapplication of the law
can result in a failure to protect survivors of abuse. Procedural inequities,
such as the demand for payment of court costs prior to permitting the filing
of domestic violence petitions with the court,108 can also result in
breakdowns of the protection from abuse system.
In her testimony, Attorney Doherty expressed concern with the lack
of streamlined procedures to permit the custodial parent to seek court
intervention in the event of contempt of the custody order.109 Since parties
who can afford an attorney can easily file a petition, Doherty wrote: “This
puts the parents who are of lower income at a disadvantage, typically the
dependent mother or litigants who have lower economic means, often
racial minorities.”110 Doherty pointed to the PASCES system currently in
place in the Commonwealth whereby support is collected efficiently and
simply through a statewide support collection system. Doherty considered
the PASCES system an example of a litigant-friendly system that favors the
dependent spouse. She would like to see a citizen-friendly system in the
custody contempt arena as well.

Roundtable discussions
On the issue of domestic violence and custody cases, an attorney in
Philadelphia reported that she was chastised by a judge for discussing
domestic violence in the context of a custody case. The judge referred to
her argument as a “slick point.”111 Another attorney told of a judge insisting
that the parties in a divorce case stay in a room together until they reached
a custody agreement, even though the case involved domestic violence.112
Other judges were reported to have confused a parent’s financial resources
with his or her parenting abilities. One attorney spoke of a judge who told a
pro se litigant that if she couldn’t afford to pay court fees, then she couldn’t

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afford to have custody of her child.113 Other attorneys said that some judges
routinely made custody determinations based on the parties’ incomes and
their respective abilities to pay court fees. Some attorneys said judges urged
pro se litigants to resolve their custody problems personally, and punished
those who did not reach settlements in their cases.114

Litigant surveys

476

A litigant noted that the judge initially refused to consider her allegations of
domestic violence in the context of her custody case.115

County Surveys
None of the counties responded to a survey question concerning the
percentage of fathers who were awarded primary physical custody in
contested custody actions, nor did any respond to the survey’s request for
breakdowns by race and gender of the outcome of plaintiffs’ requests for
physical custody for 2000–01.116

Support and Equitable Distribution
Public Hearing Testimony
Public hearing witnesses testified that entry of a support order did not
remedy the economic consequences resulting from the delay between the
filing of a support complaint and resolution of the case. Although the law
requires the issuance of an award for support arrears retroactive to the date
of the filing of the complaint, payments as small as $15 per month may be
allowed even though the arrearages may have reached hundreds or even
thousands of dollars. The token payments fail to compensate the litigant
who has gone for so long without any support, and who has incurred
attorney’s fees, and lost wages, often while attending multiple support
proceedings.117 Further, some courts rarely award interest, attorney’s fees,
or penalties, particularly in support contempt cases, although these rights
and remedies are permitted by statute.118
Witnesses expressed concerns about possible double standards in the
enforcement of child support proceedings. Attorney Elizabeth Bennett,
testifying in Philadelphia, said that when low-income African American
men are incarcerated for failing to pay support while wealthy white men
use their financial resources to avoid harsh legal remedies, it “ultimately
hurts the structure of black families by diminishing the role of fathers by
taking away dollars from their children and putting it back in the hands of

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the government.”119 Witnesses viewed the disparate treatment of similarly
situated obligors as evidence of racial bias.120
Attorney Ardoline, in State College, described an incident in which a
family judge simply refused to apply the support law and instead counted
Supplemental Security Income and food stamps as income in calculating a
child support obligation. Ardoline said the judge routinely imposed his
own values instead of applying the law, citing, for example, his belief that
welfare recipients were able to pay support if they spent money in ways
that met with his personal disapproval.121

County Surveys
When asked whether, and how often, judges grant advances on equitable
distribution or a preliminary award of costs and fees, Delaware County
said “no” and Elk County said it was very rare. The remainder of the
counties said such advances are granted, but nowhere in more than
10 percent of the cases; three counties reported advances in 5 percent
or less of the divorce cases. Six counties said they did not know the
answer, or did not keep track of the information.122

JUDICIAL ATTITUDES IN FAMILY COURT CAN REFLECT
BIAS AGAINST WOMEN, MINORITIES, AND THE
INDIGENT.
The Committee received numerous complaints about reportedly biased
conduct directed toward women, minorities, and indigent witnesses and
litigants appearing before the family court system. At the State College
public hearing, for example, Attorney Bloom reported that some judges
were impatient with female litigants whom they viewed as emotional,
and frequently interrupted witnesses and other parties who were female.
She further stated that she believed this judicial conduct became more
noticeable in cases where the women had low incomes.123 At other times,
witnesses said, bias is exhibited in judicial remarks exhibiting cultural
stereotypes. Bloom related a case in which a judge told an imprisoned
domestic violence defendant, brought before him to litigate a custody case,
that the couple should be married, the man should be working, and the
woman should be home caring for the children.124 A full discussion of the
issue of biased conduct as reported and expressed by participants in the
judicial system is set forth in other chapters of this report.

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INCONSISTENCIES IN THE APPLICATION OF THE LAW,
COUPLED WITH INADEQUATE REPRESENTATION AND
FACILITIES AND CULTURAL BIASES, CAN HAVE A
DISPROPORTIONATELY NEGATIVE IMPACT UPON
MINORITY AND FEMALE LITIGANTS IN CHILD
DEPENDENCY PROCEEDINGS.

478

Inadequate representation in dependency court proceedings has a
disproportionately negative effect upon low-income litigants, just as it
does in the domestic relations division of the family court system. In both
cases, the low-income litigants are often women and minorities. Inadequate
facilities can create barriers for litigants attempting to access the legal
system. A lack of personnel within the system can lead to multiple and
fragmented hearings. The misapplication of procedural and substantive
laws, and the imposition of cultural biases and stereotypes, can have a
harmful impact upon these litigants.

Juvenile Law Center Report

The Juvenile Law Center concluded that, while the
quality of representation varied from attorney to
attorney, most attorneys were not following the
Juvenile Act’s requirements for guardians ad litem
(GALs), and were not adequately representing the
children involved in dependency proceedings.
In 2001 the Juvenile Law Center125 (JLC) issued the report, Promises Kept,
Promises Broken: An Analysis of Children’s Right to Counsel in Dependency
Proceedings in Pennsylvania. The report discussed the quality of representation
received by the approximately 22,000 Pennsylvania children who are annually
involved in dependency proceedings.126 The children are guaranteed the right to
an attorney, pursuant to Pennsylvania’s Juvenile Act.127 The report was based
upon a survey of over 400 dependency attorneys in all but two of Pennsylvania’s
67 counties, with additional information from JLC’s own on-site visits to
16 juvenile courts throughout the Commonwealth.128
The JLC concluded that, while the quality of representation varied from
attorney to attorney, most attorneys were not following the Juvenile Act’s
requirements for guardians ad litem (GALs), and were not adequately
representing the children involved in dependency proceedings.129 The survey
results indicated that more than half of the lawyers were not meeting with
their clients until moments before the adjudicatory hearings, nor were they

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conducting independent investigations in the cases.130 According to the
report: “Many attorneys we met believed that it was the sole responsibility
of the county agency to conduct factual investigations.”131 Two-thirds of
the attorneys in the survey indicated that they did not regularly meet with
witnesses before hearings, and a significant number of attorneys admitted
their failure to interview their clients and other necessary parties such as
parents and foster parents.132
The JLC also concluded that many courts were not conducting full, factual
hearings before rendering dependency and placement decisions. Attorneys
reported that more than 70 percent of adjudicatory hearings took less than
30 minutes; several reported hearings lasting no more than five minutes,133
often because the court was relying primarily on stipulations of counsel.
This was particularly troubling, the JLC concluded, “since it is unlikely
that such hearings fully explore the child’s needs and interests. Indeed,
the Superior Court has held that it is improper for a court to accept the
stipulation of parties regarding an adjudication of dependency without
making an independent determination.”134
The Juvenile Act now imposes requirements on county child welfare agencies to
make reports and recommendations available to GALs prior to hearings.135 The
county agencies also must notify GALs of any plans to relocate the child or to
modify custody or visitation arrangements; an explanation for the changes must
accompany the notification.136 Fewer than one-third of the lawyers, however,
said they were always notified prior to placement changes, and only slightly
more than one-third said they were always notified prior to a case conference.
More than two-thirds of the attorneys reported not receiving their clients’
medical and psychological records, and one-third to one-half of the attorneys
reported not receiving the agency social workers’ reports.137 “Given that the
survey also shows that many lawyers are not meeting with or interviewing their
clients prior to adjudicatory hearings,” the report says, “It is especially crucial
that attorneys receive the agency social worker’s report and all other relevant
records about the child if they are to develop any understanding of their
client.”138

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480

The JLC found that GALs were provided with little incentive or assistance
to perform their jobs in a competent manner. Only 10 percent received
training at the time of their initial appointments as GALs. 139 Many
attorneys had large caseloads; in Philadelphia, some members of the
Public Defenders Child Advocacy Unit had more than 500 open cases.140
No attorneys were paid more than $70 per hour.141 Over two-thirds had
no access to investigators, which the JLC concluded was related to the low
rates of pay received by the GALs. 142 While half of the attorneys believed
that their low rate of remuneration did not affect the quality of their
representation, the JLC disagreed.
“Because these attorneys are largely ignorant of the extent to which
they are failing to provide high quality representation, they simply do
not recognize the financial strain they would feel if they actually tried to
meet the requirements of…[the Juvenile] Act…It will be interesting to see
whether these attorneys begin to feel that financial strain as they struggle
to meet their statutory mandate on a limited budget.”143

Philadelphia Public Interest Bar Report
The Report by Philadelphia’s Public Interest Bar and Advocacy Community
on Dependent Court Resources and the Need For Judges, published in
February 2001, assessed Philadelphia’s dependency court system, concluding
that: “The judges, lawyers and litigants are not accorded the respect that
they and the issues they bring to the Court deserve. Nor are the resources
that are needed for the proper administration of justice available to this
Court. Thousands of families appear before the Philadelphia Family Court
each year, and the system fails many of them.”144
The report detailed the lack of staff, courtrooms, attorneys, and resources
necessary to appropriately adjudicate the more than 4,000 dependency
petitions filed annually.145 These deficiencies led to unreasonable delays,
with entire daily court lists postponed, often without prior notice to the
attorneys or litigants.146 Hearings have been held without court reporters,
leaving no record of the proceedings.147 Hearings have been held without a
judge or master presiding in the courtroom, based solely upon stipulations
of counsel.148

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“The rates of compensation and size of attorney
caseloads in Philadelphia have left a generation of
children and their parents with often inadequate
assistance of counsel in some of the most important
events of their troubled lives.”
—Report by the Philadelphia Public Interest Bar and Advocacy
Committee on Dependent Court Resources and the Need for Judges

The report found that the lack of judges created long court lists; sometimes
more than 30 cases per judge were scheduled, creating foreshortened
hearings and hasty consideration of the complex issues involved in each
case. 149 While “one judge, one family” is the goal in dependency court, the
lack of judicial staff fosters an ever-changing slate of judges, resulting in a
lack of continuity and efficiency in the disposition of each case.150
The report found that Philadelphia dependency lawyers were paid so poorly
that it was difficult to attract attorneys to accept these cases. “The rates of
compensation and size of attorney caseloads in Philadelphia have left a
generation of children and their parents with often inadequate assistance of
counsel in some of the most important events of their troubled lives.”151 Such
low fees “present a real threat to the safety of children and the preservation
of families in Philadelphia. Any system that unrealistically limits the amount
of work by advocates on behalf of children and parents damages the
protection afforded these people…The current flat fee system does little
more than ask counsel to show up in court. It provides for little or no client
contact or preparation. It does not recognize that cases are often extremely
delicate and complex. It does not acknowledge that many of these cases
become more demanding the longer they are in the system.”152
The report recognized that these shortcomings have wide consequences.
“We note that neither the bar nor the judiciary would tolerate inadequate
lawyer practice, non-record proceedings and questionable satisfaction
of due process protections in any other area of practice. Dependency
proceedings, which have profound effects on the lives of children and
families, should not be treated any differently.”153 These inadequate
practices and procedures also have a negative impact on the parties’
perceptions of justice, leading to their “eroded confidence in the authority
and wisdom of the Court process.”154

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Allegheny County Roundtable Discussion

482

In 2002, the Committee conducted a roundtable discussion concerning
dependency practices and procedures in Allegheny County. Attending
the discussion were 20 professionals, including juvenile court judges,
the Allegheny County Juvenile Court System director, child advocate
attorneys, and the Children, Youth and Family Services (CYFS) director
and caseworkers.155 As a result of this session, the Dependency Work
Group Report of Focus Group Discussion was prepared in May 2002,
which set forth the findings and recommendations of the participants.
Although African Americans make up only 12 to 13 percent of the
Allegheny County population, they account for 60 percent of the families
involved in civil juvenile proceedings and 80 percent of all dependency
proceedings.156 While it was beyond the scope of the discussion group to
reach conclusions about this statistical disparity, several participants
nevertheless expressed the opinion that racial motivations were at least
partly responsible for the overrepresentation of African American families
in dependency proceedings.157
No one at the roundtable could recall a recommendation for a white child
to be placed with an African American family, although it has not been
uncommon for African American children to be placed with white foster
families or adoptive families.158 Some participants also noted that biracial or
multi-racial children who “looked” African American were categorized and
treated as such, without regard for their multi-ethnic heritage.159 Members of
the discussion group regarded both of these issues as indicators of racial
discrimination.160
These professionals believed that the race, gender, or cultural values of a
participant in the juvenile justice system often had an impact on the outcome
of a dependency case, regardless of whether the participant was the child or
family in question, the CYFS caseworker, the legal advocate, or the judge.
Incorrect assumptions about other ethnic or racial groups were often based on
cultural stereotypes or a lack of cultural awareness; stereotypes often led to
incorrect assumptions about people’s behavior, based on conscious or
unconscious assumptions that one’s own cultural norms are “correct” or
“superior” to others’ norms. The example discussed by many participants
concerned adoption, a positive white cultural norm that is viewed in a
different light by many in the African American community. Participants
indicated that, although many African Americans strongly believe in the
appropriateness of caring for, and becoming the guardian for one’s kin, many
in the community do not believe it is appropriate to adopt those children,
thereby terminating the rights of biological parents who are also their kin.161

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These professionals believed that the race, gender, or
cultural values of a participant in the juvenile justice
system often had an impact on the outcome of a
dependency case, regardless of whether the participant
was the child or family in question, the CYFS
caseworker, the legal advocate, or the judge.
A troubling issue was raised at the roundtable concerning the African
American community’s perceived reluctance to adopt children, coupled
with the system’s willingness to place these children into white families.
“When you bring more children of color into the system, then refuse to
acknowledge that adoption is not necessarily something of high value with
communities of color, the result is many more children than adoptive
families available and a systemic placement of children of color within
white families…[This] raises the question of racial prejudice…”162
It was further reported that decision-makers in dependency cases were
often influenced by the erroneous stereotype that corporal punishment
was a “normal” method to discipline children in African American families.
Participants said that some decision-makers would therefore not regard
such acts as child abuse, even though the same behavior in white families
could be viewed as abuse. The roundtable participants believed that this
attitude places African American children at risk because they do not
receive the same degree of protection as similarly situated white children.
Speakers pointed out that the belief serves to discriminate against the
abused African American child, although the stereotype itself is incorrect.
There is no evidence that African American families accept or use corporal
punishment more often than white families.163
The discussion group noted that racial and cultural bias within the
dependency system often grows out of racial and cultural bias in other
social systems. The most obvious example concerned the criminal justice
system, where, as discussed in the chapter on sentencing disparities in the
criminal justice system, minorities are disproportionately arrested and
incarcerated. A criminal conviction could later impede a person’s attempt
to adopt a child or become a foster parent. The roundtable participants
were concerned that current laws and regulations could, for example,
preclude a person convicted of harassment at age 18 from caring for a
child. Exacerbating the situation are statutory provisions requiring the

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reporting of all criminal convictions, along with Department of Public
Welfare (DPW) regulations that deny counties reimbursement for foster
care payments to persons with criminal backgrounds. Alexis Samolski,
assistant county solicitor in Allegheny County, explained: “Now they are
60 years old and they want to adopt their grandchild, and they have this
offense that creeps back up at them, and they’re amazed because they can’t
understand what the big deal is.”164

484

Many discussion group participants expressed a belief that the juvenile
justice system treated white families differently from African American families,
especially with regard to the system’s tolerance for drug and alcohol addictions.
James Rieland, director of the Allegheny County Juvenile Court, explained that
certain forms of addiction “bring certain people to the attention of the system,
when other addictive behaviors…don’t bring people to the attention of the
system…Crack addiction is looked at very differently than a legally gotten
prescription from a doctor treating some suburban person or somebody
who’s addicted to martinis after work.”165 Crack conjures up criminal behavior,
Rieland continued, while martinis conjure up suburbia. “I think it might look
very differently if those people were coming before us with very similar facts of
abusing their kids.”166
Discussion group members noted other subtle forms of differential
treatment, including a perceived willingness to remove children from
homes in minority-occupied public housing when similar incidents in white,
single-dwelling neighborhoods did not result in the filing of dependency
petitions.167 Speakers shared the belief that more resources were directed
toward keeping white families intact than toward keeping minority families
intact.168 Because most representatives of the dependency system, from
caseworkers through attorneys, were white, the participants said, minority
litigants often concluded that the system did not understand or reflect their
own cultural values and identities.169
The discussion group also addressed the issue of gender as it related to seeking
justice within the juvenile dependency system. They noted that Juvenile Court
shared the general societal assumption that mothers were the natural caretakers
of children.170 The assumption often complicated the efforts of both mothers
and fathers to seek appropriate outcomes in placement and services for their
families.

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The general consensus of the participants was that the dependency system
made little effort to identify or include fathers—and especially African
American fathers—in family services plans.171 In the few cases where the
father was identified and included, however, he often had to meet less
stringent standards than a mother in order to achieve visitation or custody.
A mother, on the other hand, sometimes faced enormous hurdles in seeking
reunification with her child. Alicia Melnick, case manager for the Court
Appointed Special Advocate Program, explained: “Mom has all these [family
service plan] rules, and a lot of times…there will be 10 goals for mom to
maintain, and dad’s goal is to maintain contact with CYF or maintain
visitation with the child…Fairness-wise, mom has to jump through all these
hoops, do all the things to maintain visitation…where dad is just being given
visitation because [he is there].”172

Public Hearing Testimony

“I have seen the same type of abuse, the same sort of
neglect in a housing project…and in an African
American home resulting in children being removed or
a petition being filed, [but] when the same thing
happens in a white suburban home, then nothing
happens at all.”
—Attorney Scott Hollander

Among those testifying at the Pittsburgh public hearing was Scott Hollander,
executive director of Legal Aid for Children (KidsVoice), which represents
approximately 5,500 children per year in abuse and neglect cases in Allegheny
County. Hollander discussed the disproportionate number of African American
families in the dependency system, and also raised the issue of cultural
stereotypes and attitudes. With regard to corporal punishment, Hollander
said he was aware “from looking at the literature that child abuse is not
predominantly African American. It cuts across all classes and races.” 173 He
noted that CYFS caseworkers are affected by their own cultural attitudes in
making decisions about which families should be considered for dependency
placements. “Clearly that person’s awareness, their cultural experiences come
to bear on the children and families they work with…I have seen the same type
of abuse, the same sort of neglect in a housing project…and in an African
American home resulting in children being removed or a petition being filed,
[but] when the same thing happens in a white suburban home, then nothing
happens at all.”174

485

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Jon Petulla, director of Human Services and Children and Youth Services
in Erie, testified at the Erie public hearing. He elaborated upon a model
system adopted by his agency to strive for cultural awareness and diversity
in all aspects of the juvenile justice system. This system is set forth in detail
under the Best Practices section of this chapter.

County Survey

486

Rates for court-appointed dependency counsel varied between $40 per hour
and $75 per hour. Allegheny County reported a flat fee of $500 for a full
day’s hearing, and $250 for a half-day. Philadelphia County did not
respond.175
Gender and racial breakdowns for children involved in dependency litigation
in 2000–01 were provided by Indiana, Lancaster, and Bucks counties and, to
a lesser degree, Philadelphia and Delaware counties.176 This information is
summarized in Table 1 of the county survey attached in Appendix Vol. III.
The counties reported a total of 34 judges hearing dependency cases. Of
these, 70 percent were male and 30 percent were female. The counties
reported a total of one African American male judge and 23 white male
judges; three African American female judges and seven white female
judges.177 Similarly, 65 percent of the non-judicial decision makers hearing
dependency cases were male and 35 percent were female. Of that group,
one decision-maker was a Latino male and 10 were white males; two were
Latina females and four were white females.178

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OTHER TASK FORCE FINDINGS
Findings in Pennsylvania on family law issues echo findings by other
state task forces. The Committee reviewed reports produced by about
20 other state task forces. Each report addressed from its own perspective
the gender, ethnic, racial, and economic issues relating to family law,
although many task forces agreed that the dissolution of marriage
contributed to the “feminization of poverty.”179 Several reports focused
upon substantive and procedural family law issues and their effect upon
litigants, while others concentrated upon the obstacles that prevented
litigants from fully accessing the judicial system.
WASHINGTON STATE

The Washington State Task Force on Gender and Justice in the Courts
concluded in its final report that substantive and procedural family laws
were not the problem. Instead, the task force focused its attention on how
“gender-based cultural myths and stereotypes about the roles of men and
women” affected the application of those laws.180 The task force identified
such “myths” as:
•

Women have equal access to jobs and equal earning power;

•

Spousal support awards are equivalent to welfare and will result in a
spouse’s refusal to seek employment; and

•

Attractive young women will remarry so there is no need to provide for
their futures.

The task force concluded that such assumptions worked to the detriment of
the economically dependent spouse, who was most often female.
The task force found that alimony, when ordered, was often of limited
duration and was generally available only to women from long-term
marriages. It concluded that marital property distribution awards put
women at a disadvantage when the court failed to consider the unequal
earning capacities of the spouses. The task force found that child support
awards were inadequate, and that mothers often settled for less than their
legal entitlement because of the father’s threats concerning child custody.

487

FAMILY LAW

MASSACHUSETTS

488

In 1989, The Gender Bias Study of the Court System in Massachusetts
acknowledged that both husbands and wives felt the negative economic
consequences of divorce. But the task force concluded that, as a result of
gender bias, wives were hurt the most. Based upon surveys, public hearings,
interviews, focus groups, and analysis of court records and statistics, the
task force identified several overriding issues with an especially harmful
effect upon women. These areas included the lack of access to legal counsel
and the inaccuracy of financial data provided to the economically
dependent spouse.
The task force found that pro se litigants encountered many more
difficulties than those litigants represented by counsel. The task force also
concluded that the court’s reluctance to award attorney’s fees contributed
to the significant number of pro se, usually female, litigants.
The task force also found that alimony was not often awarded, especially
when a child support order was in effect. When an alimony award was
entered, it did not appropriately account for the dependent spouse’s lost
career opportunities and their impact on the spouse’s future earning
potential. A dependent spouse, most often female, usually saw her standard
of living decline after a divorce, while the man’s standard of living was
found to increase.
The task force’s analysis of custody cases led to the finding that, “more
frequently, gender stereotypes mean that mothers are held to a higher
standard than fathers, and that the interests of fathers are given more
weight than the interests of mothers and children.”181 These stereotypes
included expectations that mothers would not become employed, would
not date or cohabit, and would not even temporarily leave the children.
While mothers were more often awarded custody than were fathers,
the task force explained the phenomenon as the result of the parents’
agreement, or as a continuation of the mother’s role as primary caretaker.
The task force found that fathers succeeded in gaining primary or shared
custody in 70 percent of the cases in which they pursued custody.

FAMILY LAW

NEW YORK

Two New York reports addressed family law concerns: The Report of the
New York State Judicial Commission on Minorities, Volume Two: The Public
and the Courts, published in 1991, and The Report of the New York Task
Force on Women in the Courts, published in 1986–1987.182 The Judicial
Commission report focused upon issues surrounding minority access to the
courts, while the New York Task Force report discussed how women were
affected by substantive family laws and the application of those laws.
The Judicial Commission report discussed the dilapidated state of the family
law courts in New York, both in New York City and in other areas of the
state. It found that, “in the family courts ... people mill around like cattle
because there’s no place for them and they don’t know what’s going on.
The judges don’t have enough time to give any one case. There is no place
to talk to a client. Sometimes the restrooms are locked.”183 Often there was
little or no information available to litigants about how to negotiate their
way through the court system. People were perplexed by simple issues such
as where to sign in for their case, and by complex issues such as how to file
a pleading. The commission recognized the difficulties that navigating the
court system posed for people with limited education or with a limited
command of English.
The commission found that race was often a factor in the outcome of child
abuse and neglect cases. Through analysis of the results from surveys and
reports from other state agencies, the final report concluded that the legal
system sometimes afforded more protection to white children than to
minority children.
The commission highlighted six perceived barriers that minorities must
overcome when they enter the legal system: psychological, economic,
informational, linguistic, cultural, and geographical. With regard to the
economic factors, the commission found that court sessions that occurred
only during weekday work hours forced low-income litigants to incur
childcare costs which they could ill afford. The commission also determined
that the family court’s too-crowded daily case schedules led to frequent
delays, continuances, and multiple hearings, which made it difficult for
low-income litigants to arrange work schedules, and frequently caused
them to miss many days of work.

489

FAMILY LAW

The Task Force on Women in the Courts also found that family courts were
inadequately maintained. “Resources allocated to the family court are perceived
to be unfairly low when compared to the resources of other courts,”184 the
report said, adding that family courts were “the stepchild of the court system,
the last to get what is needed and the first to have it taken away.”185

490

The task force studied the impact of substantive family laws upon women,
and made findings similar to those of the other task forces cited previously.
It concluded that, regardless of the substantive issues, “a judge’s refusal to
award adequate or timely counsel and expert fees [raised] critical barriers
to women’s receiving adequate representation in matrimonial cases.”186
Inability to afford representation made it difficult or impossible for women
to enforce child support awards or other court orders, obtain marital asset
information, litigate claims, and file appeals.
TEXAS

The Gender Bias Task Force of Texas: Final Report, published in 1994,
included a chapter on the accessibility of the court system. The task force
concluded that low-income litigants were often denied access to the judicial
system because of their financial status and that low-income litigants’ needs
for legal services far outweighed the available legal resources. The task
force concluded that women were disproportionately affected by this lack
of legal resources, because women were far more likely than men to live in
poverty.
In the chapter of the report discussing substantive family law issues, the task
force found that when women were divorced, judicial property division
awards did not adequately compensate for the differences in many women’s
lesser earning capacity. The task force determined that temporary spousal
support awards,187 separately or in conjunction with low- or non-existent
counsel fee awards, forced economically dependent spouses into settling on
unfavorable terms the division of marital assets portions of their cases.
CALIFORNIA

California published its report on racial and gender bias, entitled Achieving
Equal Justice for Women and Men in the California Courts, in 1996. The
section of the report devoted to family law issues addressed substantive and
procedural problems as well as the barriers to litigants’ access to the courts.
Through public hearings, roundtable discussions, and a judicial survey, the
task force concluded that family law “is an area in which gender bias is
rampant in the courts; probably because this is an area in which judges
have the greatest discretion and where biases are the strongest.”188

FAMILY LAW

The results of the task force’s judicial survey showed that “judges rate the
family law assignments as their lowest preference by a wide margin.”189
The task force linked the judges’ preferences to the low priority accorded
to women’s and children’s issues, and to the time constraints, inadequate
staffing, and pressure to move calendars that “augment the stress inherent
in hearing matters of great emotional import...resulting in judicial burnout
among family law judges.”190
The task force found that in many courthouses there were too few judges,
too few courtrooms, and too frequent delays in hearing family law cases.
The task force also determined that there was little coordination between
the various sections of the court administering family law issues.
The task force also found litigants encountering many obstacles in
the family court system. The litigants received inadequate information
concerning their substantive and procedural rights, and were given
insufficient assistance by court personnel. The task force concluded that
the effects were felt most acutely by low-income litigants and by those who
were primary caretakers of children, both of whom were usually women.
The problems were further exacerbated by the lack of adequate legal
representation for many low- and moderate-income litigants.
With regard to substantive areas of the law, the task force concluded
that child support awards and attorney’s fee awards were insufficient,
and that both effects had the greatest negative impact upon low-income,
often female litigants. The task force found that custody decisions—to the
detriment of both fathers and mothers—were often influenced by judicial
biases concerning proper gender roles.
OREGON

The Oregon Gender Fairness Task Force Report, published in 1998,
addressed the extent to which gender affected litigants’ abilities to pursue
their substantive family law rights. The results of their surveys indicated
that both men and women perceived bias against them in areas of family
law. Men perceived that they were discriminated against in custody cases,
although statistics from Oregon court records indicated that men were
awarded primary custody as often as women when the men pursued
custody through the final hearing. Women more often perceived bias
against them in economic matters, asserting, for example, that, with regard
to spousal support, their services as homemakers were not sufficiently

491

FAMILY LAW

valued and that they received inadequate spousal support—both in amount
and duration—to enable them to achieve financial independence. The task
force received similar testimony concerning equitable distribution awards,
which led to its conclusion that, “Even when a woman is given the larger
half of the property, the award is not sufficient to offset the long-term
disparity in income or potential for income.”191

492

The task force found that the wealth of a litigant had an effect upon the
outcome of his or her domestic relations case. The poorer a litigant, the
worse he or she fared in court. The task force also determined that ethnic
and racial minorities encountered additional obstacles in family court,
including language barriers, mistrust of the police, and fears concerning
deportation, evidencing a “general pattern in which women of color are
reluctant to use the courts or even to consult with a lawyer.”192

FAMILY LAW

CONCLUSION
Pennsylvania’s family and dependency court systems are currently fraught
with obstacles that a person must overcome if he or she is to gain access
to the courts and to secure appropriate familial and economic remedies.
Keeping in mind the fact that most litigants in the family and dependency
systems are low-income, the courts must take steps to become more
accessible for all, not just the wealthy few. Family and dependency court
procedures must be changed to ensure that justice is “dispensed in a fair,
timely and cost-effective manner so that the trauma experienced by Mom,
Dad and the kids is not exacerbated by repetitious and unnecessary court
events.” 193 Substantive and procedural laws must be applied in an evenhanded, consistent and appropriate manner. As the Washington State Task
Force declared in its own final report: “While the judicial system cannot
end poverty for women and children, it can, through understanding, avoid
contributing to it.”194 Cultural biases must not be permitted to stand in the
way of equal justice for all litigants, regardless of race, gender, or financial
resources. The best practices section below, and the recommendations that
follow, are designed to promote and implement these goals.

493

FAMILY LAW

BEST PRACTICES
ERIE COUNTY

494

Erie County’s Office of Children and Youth (OCY) has implemented a
program to ensure that the children of Erie County receive care in safe,
abuse-free, multi-ethnic environments. To further this goal, the OCY has
developed culturally focused policies and procedures for its child welfare
staff, including the development of a code of ethics and a cultural
competency policy, which are the cornerstones of its ongoing plan to
promote a culturally diverse workplace. This five-year plan includes the
following:
•

A commitment to recruit, retain, and promote a diverse staff, which
includes women, people of color, and people with multilingual
capabilities;

•

Ongoing orientation and training activities about cultural diversity for all
staff, with special sensitivity training for new employees;

•

A commitment to take appropriate steps to ensure that the community
views the office as a place of comfort and assistance;

•

The restructuring of the OCY to promote increased cooperation and
teamwork among all levels, units, and service providers;

•

A physical work environment that reflects cultural diversity; and

•

The implementation of regular forums for all levels of staff to address
and resolve issues that arise.

The OCY has established several underlying principles upon which its
clinical practice is grounded. These include the following:
•

The recognition that it is the OCY’s responsibility to provide culturally
competent services that incorporate equality and non-discriminatory
behavior;

•

Staffing patterns that reflect the ethnic and racial makeup of the client
population in order to ensure the delivery of culturally competent
services. Job descriptions, duties, and responsibilities must also reflect
culturally competent practices;

•

The acknowledgement of the impact of ethnicity and culture on behavior,
taking these factors into account when working with both employees and
client families of various ethnic and racial backgrounds or lifestyles;

FAMILY LAW

•

The necessity of annual education and training to enhance the staff’s
understanding of cultural competency;

•

Sanctioning and mandating the incorporation of cultural knowledge in
both practice and policymaking; and

•

Hiring and maintaining a diverse staff.

MONTGOMERY COUNTY
As set forth in more detail in the chapter on Gender Bias in Jury Selection,
Montgomery County operates a model childcare program for the benefit of
parents who must appear in court, including family court. Created in 1995,
the Court Care Center is the Commonwealth’s first drop-in courthouse
childcare center to operate with a full-time professional childcare staff, fully
licensed by the Pennsylvania Department of Public Welfare.

495

FAMILY LAW

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Establish a statewide uniform family law system, with procedural rules
governing the management, processing, and procedures for family law
cases from inception through conclusion.195

496

2. Establish uniform requirements for courts regarding family and
dependency cases, including a system for the dissemination of public
information in oral, written, and telephonic form about the availability
of interpreters, court procedures for all areas of family law, substantive
and procedural laws and rights, the availability of in forma pauperis
status, the availability of pro bono counsel, and other appropriate legal
and social services.
3. Order the reallocation of existing judicial resources to increase the
proportion of judges assigned to hear family law cases.
4. Require opinions from the trial judge, master, or hearing officer that
explain the basis for decisions concerning custody, alimony, child
support, and equitable distribution.
5. Direct court administrators to establish a scheduling system that
provides judges with sufficient time necessary to hear family cases. To
the extent possible, cases should be completed in one scheduled hearing
and decisions should be rendered in a timely fashion, in order to avoid
repeated court appearances by the parties.
6. Establish a more effective and less expensive system for litigants to
enforce support, custody, and alimony orders.
7. Require court-appointed attorneys and court personnel appearing in
dependency court to attend training sessions.196
8. Establish guidelines for maximum caseloads for guardians ad litem
and court-appointed attorneys in dependency cases, and for adequate
compensation to permit guardians ad litem and court-appointed
attorneys to perform their jobs in a competent manner.
9. Establish clear procedures for processing bias complaints against family
law masters.197

FAMILY LAW

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Allocate sufficient funds to study and develop a Family Court Reform
Model System effectuating the proposed statewide family law system
set forth in Recommendations for the Pennsylvania Supreme Court,
Number 2.
2. Allocate sufficient funds so that courts can physically accommodate all
family and dependency litigants.
3. Allocate sufficient funds for legal aid and other pro bono organizations
to adequately address the needs of low-income family law litigants.
4. Modify the alimony section of the Divorce Code to further define the
appropriate circumstances under which alimony should be awarded,
and to provide meaningful and uniform guidelines regarding the
amount and duration of the alimony award.
5. Allocate additional court funds to hire personnel necessary to process
family and dependency cases.

TO BAR ASSOCIATIONS
The Committee recommends that bar associations:
1. Work with the Supreme Court and citizen groups to establish
educational programs for the general public on substantive and
procedural rights and responsibilities in family and dependency law.

TO COURT ADMINISTRATORS AND MANAGERS
The Committee recommends that court administrators and managers:
1. Study and recommend to the Court appropriate changes in local
family law and juvenile court facilities to establish a family and juvenile
court infrastructure of sufficient size for effective, safe, and efficient
accommodation of all family law litigants, witnesses, and related
personnel.198
2. Study methods of enhancing the dependency system in each county and
submit proposals for federal funds to implement these improvements,
as permitted pursuant to the Federal Strengthening Abuse and Neglect
Courts Act of 2000, Public Law 106-314.

497

FAMILY LAW

3. Study and recommend to the Court standards for all family and
dependency court cases that address the following procedural issues:
•

the timely advance notice to all parties concerning scheduling
changes;

•

the accurate and complete transcription of all proceedings;

•

the presence of a judge, hearing officer, or master for every hearing;

•

the allocation of sufficient time for full presentation of evidence and
examination of witnesses at every hearing; and

•

the allocation of sufficient time for the hearing of all cases scheduled
on any given day.

498

4. Establish a system to disseminate information between the family and
juvenile sections of each court in a timely and appropriate manner, in
order to facilitate consolidation of dependency, custody and/or support
issues, as may be appropriate.

TO THE DEPARTMENT OF PUBLIC WELFARE, AND
CHILDREN, YOUTH AND FAMILY SERVICES PROGRAMS
The Committee recommends that the Department of Public Welfare and
Children, Youth and Family Services Programs:
1. Establish and improve ongoing training for all appropriate social
services personnel, similar to that required for court-appointed
attorneys and court personnel who are involved in dependency
proceedings.199
2. Develop methods of enhancing the delivery of services in each county
and submit proposals for funding of those improvements, pursuant to
the Federal Strengthening Abuse and Neglect Courts Act of 2000,
Public Law 106-314.

FAMILY LAW

ENDNOTES
············································
1

The Report of the Pennsylvania Bar Association Task Force on Family Court Reform (2000),
Introduction to Recommendation 55, Family Court Rules, p. 1.

2

Transcript from Philadelphia Roundtable Discussion on Family Law Matters: Gender and Racial
Bias, p. 3 [hereinafter Philadelphia Roundtable on Family Law]; Dependency Work Group Report
of Focus Group, p. 1 [hereinafter Dependency Work Group Report]

3

Pittsburgh Roundtable on Family Law, supra at 3; Report by Philadelphia Bar Association’s Public
Interest Bar and Advocacy Community on Dependent Court Resources and the Need For Judges
(2001), p. 8 [hereinafter Public Interest Report].

4

Testimony of Pennsylvania State Representative Lita Cohen, Harrisburg Public Hearing Transcript,
p. 62 [hereinafter Cohen Testimony].

5

Philadelphia Roundtable on Family Law, supra at 8.

6

Transcript from Philadelphia Roundtable on Substantive and Procedural Barriers for Women and
Racial Minorities in Family Court, p. 3, attached in Appendix Vol. III [hereinafter Philadelphia
Roundtable on Substance and Procedure].

7

Testimony of Rebecca Ardoline, State College Public Hearing Transcript, p. 72 [hereinafter
Ardoline Testimony].

8

Precise statistics are not collected on the percentage of low income litigants in family court who are
females or minorities, but the consensus of all of the attorneys and litigants who testified on those issues
before the Committee is that women and minorities are a large percentage of family law litigants and a
majority of the low-income litigants who are unrepresented in family court proceedings.

9

Cohen Testimony, supra at 65.

10

Id.

11

Testimony of Elizabeth Bennett, Philadelphia Public Hearing Transcript, p. 333 [hereinafter Bennett
Testimony].

12

Testimony of Caren Bloom, State College Public Hearing Transcript, pp. 85–86 [hereinafter Bloom
Testimony].

13

Ardoline Testimony, supra at 81–82.

14

Id. at 80–81.

15

Testimony of Carolee Medico-Olenginski, Wilkes-Barre Public Hearing Transcript, p. 264
[hereinafter Medico-Olenginski Testimony].

16

Id. at 265.

17

Ardoline Testimony, supra at 74.

18

Philadelphia Roundtable on Substance and Procedure, supra at 3.

19

Id. at 2.

20

Id. at 4.

21

Transcript from State College Roundtable on Substantive and Procedural Barriers for Women and
Racial Minorities in Family Court, p. 2, attached in Appendix Vol. III [hereinafter State College
Roundtable].

22

Philadelphia Roundtable on Family Law, supra at 7.

23

Id.

24

State College Roundtable, supra at 20.

25

Philadelphia Roundtable on Family Law, supra at 3.

26

Id. at 8.

27

State College Roundtable, supra at 19.

28

Id. at 3.

29

Philadelphia Roundtable on Substance and Procedure, supra at 3.

499

FAMILY LAW

500

30

See litigant surveys and summary in Appendix Vol. III.

31

Pennsylvania Supreme Court Committee on Race and Gender Bias Family Law Work Group
Survey Analysis of Pennsylvania Courts (2002), response to Section IV Table 7, p. 16, attached
in Appendix Vol. III [hereinafter Survey of Pennsylvania Courts].

32

Id. at response to Section IV, Table 8, p. 17.

33

Id. at response to Section IV, Table 56, p. 61.

34

Id. at response to Section I, Table 23, p. 34; response to Section I, Table 44, p. 54.

35

Ardoline Testimony, supra at 84.

36

Id. at 78.

37

State College Roundtable, supra at 11; Philadelphia Roundtable on Family Law, supra at 4.

38

State College Roundtable, supra at 22.

39

Philadelphia Roundtable on Family Law, supra at 4.

40

State College Roundtable, supra at 22.

41

Philadelphia Roundtable on Substance and Procedure, supra at 5.

42

Philadelphia Roundtable on Family Law, supra at 4.

43

Id.

44

State College Roundtable, supra at 19; Philadelphia Roundtable on Family Law, supra at 4.

45

Survey of Pennsylvania Courts, supra at response to Section IV, Table 9, p. 18.

46

Id. at response to Section I, Table 43, p. 53.

47

The Family Division is not open after regular business hours. Rather, Philadelphia County has an
emergency PFA filing site in another division of the Common Pleas Court.

48

Survey of Pennsylvania Courts, supra at response to Section I, Table 42, p. 52.

49

Id. at response to Section I, Table 38, p. 48.

50

Id.

51

Written Testimony of Carol Mills McCarthy, Pittsburgh Public Hearing, p. 4 [hereinafter McCarthy
Written Testimony].

52

Bennett Testimony, supra at 325.

53

Testimony of Mary Colonna, Erie Public Hearing Transcript, p. 174 [hereinafter Colonna Testimony].

54

Id.

55

Testimony of Carl Romanelli, Wilkes-Barre Public Hearing Transcript, pp. 190–191 [hereinafter
Romanelli Testimony].

56

McCarthy Written Testimony, supra at 4.

57

Id.

58

Medico-Olenginski Testimony, supra at 257.

59

Testimony of Scott Hollander, Pittsburgh Public Hearing Transcript, pp. 326–328 [hereinafter
Hollander Testimony].

60

Philadelphia Roundtable on Substance and Procedure, supra at 3–4. Additionally, this issue
was addressed by the PBA Task Force on Family Court Reform, Recommendation 55, which
acknowledges the need for statewide unified family court rules.

61

Philadelphia Roundtable on Substance and Procedure, supra at 4.

62

Written Testimony of Mary Cushing Doherty, Philadelphia Public Hearing, p. 3 [hereinafter
Doherty Written Testimony].

63

Id. at 1.

64

Id. at 3.

65

Written Testimony of Caren Bloom, State College Public Hearing, p. 10 [hereinafter Bloom Written
Testimony].

66

Id. at 7.

67

Id.

FAMILY LAW

68

69

Id. at 4.
Id. at 5.

70

Id.; Philadelphia Roundtable on Substance and Procedure, supra at 5.

71

Philadelphia Roundtable on Family Law, supra at 5.

72

Id. at 1, 5.

73

Id. at 4.

74

Survey of Pennsylvania Courts, supra at response to Section I, Table 33, p. 43.

75

Id. at response to Section II, Table 45, p. 55.

76

McCarthy Written Testimony, supra at 4.

77

Id.; see also Bloom Testimony, supra at 154.

78

23 Pa. Cons. Stat. Ann. § 3701.

79

Bloom Testimony, supra at 153–154.

80

Id. at 156.

81

Id. at 185.

82

Doherty Written Testimony,supra at 3.

83

Id. at 3–4.

84

Id.

85

Id. at 4.

86

Id.

87

Id.

88

Id. at 4–5.

89

State College Roundtable, supra at 9.

90

Id.

91

Philadelphia Roundtable on Substance and Procedure, supra at 3.

92

Id. at 3–4.

93

Id. at 5.

94

Id.

95

State College Roundtable, supra at 13.

96

Philadelphia Roundtable on Substance and Procedure, supra at 7.

97

Id.

98

Survey of Pennsylvania Courts, supra at response to Section V, Table 12, p. 21.

99

Id. at 29.

100

Id. at response to Section V, Table 14, p. 25.

101

Testimony of Kevin Sheahan, Harrisburg Public Hearing Transcript, pp. 103–104.

102

Hollander Testimony, supra at 52.

103

McCarthy Written Testimony, supra at 2.

104

Ardoline Testimony, supra at 76–77.

105

Hollander Testimony, supra at 47–48.

106

Ardoline Testimony, supra at 77–78.

107

Bloom Testimony, supra at 156.

108

Ardoline Testimony, supra at 76–77.

109

Doherty Written Testimony,supra at 2.

110

Id.

111

Philadelphia Roundtable on Family Law, supra at 6.

112

Id.

113

Id. at 5.

501

FAMILY LAW

502

114

Id. at 6.

115

See litigant surveys and summary, attached at Appendix Vol. III.

116

Id. at 29.

117

McCarthy Written Testimony, supra at 4.

118

Doherty Written Testimony,supra at 7, referencing 23 Pa. Cons. Stat. Ann. § 3703.

119

Bennett Testimony, supra at 330.

120

Id. at 330–331; Medico-Olenginski Testimony, supra at 260–261; Romanelli Testimony, supra at
189–190.

121

Ardoline Testimony, supra at 75–76.

122

Survey of Pennsylvania Courts, supra at response to Section V, Table 13, p. 23.

123

Bloom Testimony, supra at 153.

124

Bloom Written Testimony, supra at 1–2.

125

Founded in 1975, the Juvenile Law Center is a non-profit public interest law firm that advances the
rights and well-being of children in jeopardy. The law firm represents and advocates on behalf of
children in both the delinquency and dependency systems. Promises Kept, Promises Broken: An
Analysis of Children’s Right to Counsel in Dependency Proceedings in PA, 2001 (Juvenile Law
Center, Philadelphia, PA), [hereinafter Juvenile Law Center, Promises, 2001].

126

Id. at 2, citing Martha C. Bergsten and Martha Wade Steketee, Pennsylvania KIDS COUNT
Partnership, The State of the Child in Pennsylvania: A 1999 Pennsylvania Guide to Child WellBeing in Pennsylvania, p. 16 (1999).

127

42 Pa. Cons. Stat. Ann. § 6337 (2000).

128

Cameron County reported that, in violation of the Juvenile Act requirements, it did not appoint a
guardian ad litem unless the child specifically requested an attorney. Lancaster County could not
identify which attorneys represented children in dependency proceedings, so no surveys were sent
to attorneys from that county; Juvenile Law Center, Promises, 2001, supra at 24.

129

Act 18 of 2000, which amended the Juvenile Act, 42 Pa. Cons. Stat. Ann. § 6301, established the
guardian ad litem position and the required conduct of attorneys undertaking representation of
children for whom dependency petitions had been filed. These requirements are set forth at 42 Pa.
Cons. Stat. Ann. § 6311 (2000).

130

Juvenile Law Center, Promises, 2001, supra at 24.

131

Id. at 28.

132

Id. at 29.

133

Id. at 34–35.

134

Id. at 34, citing In the Interest of Michael Y, 365 Pa. Super. 488, 530 A. 2d 115 (1987).

135

42 Pa Cons. Stat. § 6311 (2000).

136

Id.

137

Id. at 30.

138

Juvenile Law Center, Promises, 2001, supra at 32.

139

Id. at 40.

140

Id. at 42, n. 32.

141

Id. at 42.

142

Id. at 28.

143

Id. at 42.

144

Public Interest Report, supra at 1.

145

Id. at 2, as reported in the National Center for Juvenile Justice, Pennsylvania Court Improvement
Project Final Report, August 4, 1998, p. 49 [hereinafter NCJJ Court Improvement Report].

146

Public Interest Report, supra at 3.

147

Id.

FAMILY LAW

148

Id. citing NCJJ Court Improvement Project at 62, nn. 69–70.

149

Id. at 4.

150

Id.

151

Id.

152

Id. at 5.

153

Id. at 8.

154

Id. at 6.

155

A complete list of those attending the roundtable discussions can be found in the transcripts of the
discussions in Appendix Vol. III.

156

Dependency Work Group Report, supra at 4. It was also noted that Latinos and other ethnic
minority groups made up a relatively insignificant portion of the Allegheny County population,
and thus a correspondingly extremely small portion of the dependency population. Hollander
Testimony, supra at 51.

157

Dependency Work Group Report, supra at 4–5.

158

Id. at 6.

159

Id. at 7.

160

Id.

161

Id. at 6; Pittsburgh Dependency Roundtable Transcript, pp. 23, 59 [hereinafter Pittsburgh
Dependency Roundtable].

162

Pittsburgh Dependency Roundtable, supra at 6–7.

163

Id. at 5.

164

Id. at 42.

165

Id. at 48.

166

Id. at 49.

167

Dependency Work Group Report, supra at 9.

168

Pittsburgh Dependency Roundtable, supra at 45.

169

Id. at 8–9.

170

A Children and Youth Family Services case is opened only in a mother’s name, regardless of
whether the father is caring for the children. Dependency Work Group Report, supra at 10.

171

Id.

172

Pittsburgh Dependency Roundtable Transcript, supra at 68.

173

Hollander Testimony, supra at 48.

174

Id. at 49.

175

Survey of Pennsylvania Courts, supra at response to Section I, Table 39, p. 49.

176

Id. at response to Section I, Table 52, p. 59.

177

Id. at response to Section I, Table 54, p. 60.

178

Id. at response to Section I, Table 55, p. 60.

179

Oregon Gender Fairness Task Force Report (1998), pp. 46–47 [hereinafter Oregon Report]; Final
Report of the Washington State Task Force on Gender and Justice in the Courts (1989), pp. 49–55
[hereinafter Washington State Report]; Gender Bias Study of the Court System in Massachusetts
(1989), p. 19 [hereinafter Massachusetts Gender Bias Study]; The Gender Bias Task Force of Texas:
Final Report (1994), pp. 45–48 [hereinafter Texas Report].

180

Washington State Report, supra at 55.

181

Massachusetts Gender Bias Study, supra at 59.

182

Report of the New York State Judicial Commission on Minorities, Volume Two: The Public and the
Courts (1991) [hereinafter New York State Judicial Commission]; Report of the New York Task
Force on Women in the Courts, Fordham Urban Law Journal, Volume XV, No.1 (1986–1987)
[hereinafter New York Task Force Report].

503

FAMILY LAW

504

183

New York State Judicial Commission, supra at 35.

184

New York Task Force Report, supra at 99.

185

Id. at 98.

186

Id. at 69.

187

As of the date of the issuance of this report, Texas did not permit the entry of an award for
alimony. Texas Report, supra at 45.

188

Achieving Equal Justice for Women and Men in the California Courts: Final Report (1996), p. 7.

189

Id. at 9.

190

Id.

191

Oregon Report, supra at 52.

192

Id. at 56.

193

Cohen Testimony, supra at 63.

194

Washington State Report, supra at 55.

195

Under this system, the Committee recommends the adoption of the following
procedures/requirements:
a. the establishment of one judge/adjudication unit per family;
b. a uniform case management system that evaluates and assigns cases based upon their complexity,
and provides for continuing periodic review to assess ongoing needs, scheduling, and other
relevant issues; and
c. the implementation of training for all affected personnel concerning the requirements and
responsibilities under this new system.
We note that on December 17, 2002, the Supreme Court of Pennsylvania announced a pilot
program to ease and expedite family court matters.

196

The training should include the following topics:
a. their responsibilities under the Juvenile Act;
b. the special issues surrounding children as clients and witnesses;
c. the availability of social services and other institutions and agencies designed to meet the needs
of dependent children and their families; and
d. the interplay between the relevant state, federal, Department of Public Welfare and Children,
and Youth and Family Services laws and regulations.

197

Master are not covered in the judicial discipline system established by the 1993 Constitutional
Amendment.

198

These facilities should reflect the same status and dignity granted to other legal facilities in that
county. In establishing the facilities, planners should take into consideration the needs of the family
law populace, including accessibility to public and other transportation, hours of availability and
need for on-site childcare.

199

The training should include these topics:
a. their requirements and responsibilities under the Juvenile Act;
b. the special issues surrounding children as clients and witnesses;
c. the availability of legal programs and other social services designed to meet the needs of
dependent children and their families;
d. the interplay between the relevant state, federal, Department of Public Welfare and Children,
and Youth and Family Services laws and regulations; and
e. diversity and cultural sensitivity training, including race, ethnicity, gender, and socioeconomic
class issues.

13

RACIAL, ETHNIC,
AND GENDER BIAS
IN THE JUVENILE
JUSTICE SYSTEM

506

INTRODUCTION

507

FOCUS OF INQUIRY

508

RESEARCH METHODOLOGY

509

NATIONAL DATA

516

STAKEHOLDER INTERVIEWS

521

PUBLIC HEARING TESTIMONY

526

OTHER TASK FORCE FINDINGS

530

CONCLUSION

531

RECOMMENDATIONS

533

ENDNOTES

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

INTRODUCTION

506

Race and gender bias are not two sides of the same coin, particularly not
with respect to the juvenile justice system. The origin, nature, and scope of
racial disparities in the juvenile justice system are different from the disparities
experienced by females. For minorities, the problem is principally one of
overrepresentation—that is, while minorities represent a fraction of the total
population of 10 to 17 year olds in the country, they comprise a substantially
greater number of youths arrested, adjudicated delinquent, committed to
secure placements, or transferred to adult court.1
In contrast, females have always been a small part of the delinquent
population in this country, far outnumbered by their male counterparts.2
While the past 10 years have seen a marked increase in arrest rates for
young females, they account for only about 27 percent of the total arrests
for delinquency, and only about 10 percent of commitments.3 For females,
disparities are reflected in the lack of gender-based solutions to female
delinquency, inadequate resources in general to meet the needs of young
female offenders, and continuing cultural and sexual stereotyping that
permits juvenile justice interventions for behaviors that, in boys, would
receive scant attention.

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

FOCUS OF INQUIRY
In its study of the juvenile justice system, the Committee identified two
primary areas of concern: the marked overrepresentation of minorities
within the system and the lack of adequate resources available for females.
Specifically, the Committee considered whether racial or ethnic background
influences decision-making within the juvenile justice system, and at what
stage between the initial arrest and final disposition the most marked racial
discrepancies begin to appear. The Committee also sought to determine the
causes of the increased involvement of young females in the system and to
assess the treatment of females once they are in the juvenile system.
In addition to these two areas of inquiry, the co-chairs of the Committee’s
on Juvenile Justice have also undertaken a statewide assessment of indigent
defense for juvenile offenders. Through the use of both a written survey
and site visits to approximately one-third of Pennsylvania’s 67 counties,
the assessment will examine the quality of representation for alleged and
adjudicated delinquent youth throughout Pennsylvania. The assessment
teams will meet with key juvenile justice stakeholders in the selected
counties and, where possible, meet with youth as well. In evaluating the
quality of representation of indigent youth, the assessment will highlight
best practices in the Commonwealth, identify areas of greatest concern, and
make recommendations for reform. The final report of the assessment will
be released separately in summer 2003.

507

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

RESEARCH METHODOLOGY

508

In support of its investigation, the Committee examined both national
and state online databases, as well as research reports prepared by national
and state public and private agencies and organizations. The Committee
reviewed testimony regarding the juvenile justice system obtained from
the public hearings convened throughout the Commonwealth. On behalf
of the Committee, the Juvenile Law Center conducted telephone interviews
with selected “stakeholders” in the Pennsylvania justice system,4 and the
co-chair of the Work Group conducted in-person interviews with other
stakeholders.5 The Juvenile Law Center staff also made a visit to a juvenile
facility on behalf of the Committee and spoke with young women residing
there.6

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

NATIONAL DATA
MINORITY OVERREPRESENTATION

Research suggests that differences in incidence rates
cannot explain minority overrepresentation in arrest,
conviction, and incarceration rates.
The overrepresentation of minorities in the juvenile justice system has
been a matter of national concern for at least the past 15 years. In 1988,
Congress responded to overwhelming evidence that minority youth were
disproportionately confined in juvenile correctional facilities by amending
the Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA).7
Specifically, the amended law required states participating in the Formula
Grants Program8 to address the overrepresentation of minority youth
confined in secure detention, secure confinement, jails, and lockups.
Overrepresentation was considered to exist where the proportion of minority
youth confined in these facilities exceeded the proportion of minority youth
in the general population.9 In 1992, Congress elevated the disproportionate
minority confinement (DMC) issue to a “core requirement,” meaning that
25 percent of each state’s Formula Grants allocation was contingent upon
compliance with this requirement.10 This remains the law today.
More recent national data confirms the persistence of significant racial and
ethnic disparities in rates of confinement for juvenile offenders. In 1997,
minorities were approximately one-third of the juvenile population nationwide,
but nearly two-thirds of the detained and committed population in secure
juvenile facilities.11 For African American juveniles, the disparities were the
greatest. Although African American juveniles made up approximately
15 percent of the male population ages 10 to 17 nationwide, they represented
26 percent of the juveniles arrested and 45 percent of the juveniles detained.12
Similarly, while African American juveniles accounted for about 33 percent
of adjudicated cases, they represented 40 percent of the juveniles in secure
residential placement.13 The Juvenile Offenders and Victims: 1999 National
Report showed that 41 percent of felony charges processed by the juvenile
justice system involved African American youth, but 67 percent of such cases
that were transferred from the juvenile court to the adult criminal justice system
involved African American youth.14 While public attention has tended to focus
on the overrepresentation of minorities in confinement, it is clear that the
problem affects the entire juvenile justice system, from arrest through detention,
diversion or referral, adjudication, disposition, and prosecution as an adult.

509

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

510

The causes of overrepresentation are not so easily identified. Scholars
caution that it is not simply that minorities commit more crimes than white
youth: Research suggests that differences in incidence rates cannot explain
minority overrepresentation in arrest, conviction, and incarceration rates.15
For example, there is substantial evidence that minority youth are treated
differently from white youth in the juvenile justice system. In one published
review of the available research, approximately two-thirds of the studies
showed that racial and/or ethnic status influenced decision-making within
the juvenile justice system.16 Moreover, the report found that when these
racial/ethnic biases occur, they can be found throughout the juvenile justice
system.17 It has also been shown, however, that the disparity is greatest at
the entry points to the system—at intake and detention—and that when
racial/ethnic differences are found, they tend to accumulate as the youths
make their way through the system.18
Importantly, the national data cited here pertain primarily to the
overrepresentation of African American youth in the juvenile justice system.
National research with respect to the overrepresentation of Latino youth is
less widely available. Since many data systems fail to disaggregate ethnicity
from race, Latino youth are often counted as white.19 Nevertheless, research
that has been conducted demonstrates that Latino youth are similarly
overrepresented in the juvenile justice system.20 Specifically, studies show
that, in many states, Latino youth are overrepresented in detention, adult
jails, and prisons, and are treated more harshly than white youth even when
charged with the same crime.21 Similarly, data from 1993 show that, in every
offense category, the average length of incarceration was longer for Latino
youth than for any other racial or ethnic group.22 Additionally, research
suggests that cultural differences between Latino youth and justice system
personnel may foster misunderstandings that can lead to inappropriate or
harsher treatment.23
Overall, however, current means for collecting and accessing data on Latino
youth are inadequate, suggesting that the extent to which minority
populations are overrepresented in the juvenile justice system is generally
underreported.

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

FEMALES IN THE JUVENILE JUSTICE SYSTEM

Females are the fastest growing segment of the juvenile
justice population, even as the juvenile crime rate
overall has dropped consistently every year since 1994.
Females are the fastest growing segment of the juvenile justice population,
even as the juvenile crime rate overall has dropped consistently every year
since 1994. While all juvenile arrest rates decreased during this time
period—particularly arrest rates for violent crimes—the data for arrest,
detention and commitment show a significant increase in the number and
percentage of females involved in the juvenile justice system.24 Indeed,
between 1990 and 1999, arrests of females increased more (or decreased
less) than male arrests in all categories of offenses, except drug offenses.25
A comparison of the gender differences in percentage of change in arrest
rates for various offenses from 1981–1997 is depicted in Tables 1 through
4 set forth below:
TABLE 1
Property Crime Arrest Rate Change
Percent change from 1981
50
Females
Males
40
1,298
arrests
30

20

10
931 arrests
0

-10

3,896
arrests
3,242 arrests

-20
1981

1983

1985

1987

1989

1991

1993

1995

1997

511

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

TABLE 2
Weapons Arrest Rate Change
Percent change from 1981
250
Females
Males

32
arrests

200

150

512

100
304 arrests
50
11 arrests
0
175
arrests
-50
1981

1983

1985

1987

1989

1991

1993

1995

1997

TABLE 3
Simple Assault Arrest Rate Change
Percent change from 1981
300
Females
Males

461 arrests

250

200

150
1,086
arrests
100

50
125
arrests

447 arrests

0
1981

1983

1985

1987

1989

1991

1993

1995

1997

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

TABLE 4
Aggravated Assault Arrest Rate Change
Percent change from 1981
200
Females
Males

105
arrests

150

100

513
385 arrests

50
44 arrests
0
229
arrests
-50
1981

1983

1985

1987

1989

1991

1993

1995

1997

Overall, delinquency cases involving females increased by 83 percent
between 1988 and 1997, and the increase affected all racial groups: white
(up 74 percent); African American (up 106 percent); and other races (up
102 percent).26 Preliminary studies suggest that the reason for the increase
is not only that females are committing more crimes, but also that responses
to their behavior have changed, resulting in more females than ever before
attracting the attention of law enforcement officials.27 Such changes include
the re-labeling of females’ family conflicts as criminal assaults, changes in
police practices regarding domestic violence and related assaultive behavior,
gender bias in the processing of misdemeanor cases, and a systemic failure to
appreciate the unique developmental issues faced by young females.28
Research also indicates that the nature and causes of female delinquency
are different from the nature and causes of male delinquency. Young
females are developmentally different from males and their involvement
in delinquency is often associated with familial and social conflicts. Females
in the delinquency system often have histories of physical, emotional, and
sexual abuse, family disruption and turmoil, physical and mental disorders,
academic failure, and a greater tendency than males to succumb to the
pressures of domination by older males.29

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

THE PENNSYLVANIA PICTURE
African American youths account for approximately 11 percent of
the population ages 10 to 17 in Pennsylvania.30 Latino youths account
for 3.7 percent.31 The Commonwealth recorded 41,898 delinquency
dispositions in 2000, of which white youths accounted for 55.7 percent,
African American youths accounted for 33 percent and Latino youths
accounted for 6.6 percent.32 Selected dispositions by race and ethnicity
in 2000 are set forth in the following Table 5:

514

TABLE 5
African
American

White

Latino

Percent of Total Population of PA

11%

n/a

3.7%

Percent of Total Number of Delinquency
Dispositions

33%

55.7%

6.6%

Percent of All Youth Placed in Residential
Placement at Disposition

39.5%

47.4%

10.2%

Percent of All Youth Placed in the Most
Secure Public and Private Residential
Facilities

51.3% (private)

36% (private)

n/a

39.2% (public)

41% (public)

Percent of All Youth Receiving Probation
at Disposition

33.1%

55.7%

7.6%

Percent of All Youth Offered Consent
Decrees

24.7%

66.9%

4.1%

Percent of All Youth Transferred to
Criminal Court

37.7%

53.6%

6.6%

Source: Pennsylvania Juvenile Court Dispositions 2000; Puzzanchera, et al, Easy Access
to Juvenile Populations Online (2002)

Selected data on specific offense categories by race and ethnicity in 1998 is
set forth in Table 6 below:
TABLE 6
African American

White

Latino

Homicide Charges

42.2 %

51.1%

2.2 %

Violent Sex Offenses

47.8%

45.2 %

3.9%

Robbery Offenses

65.2 %

24.2 %

8.4%

Aggravated Assault Charges

55.5 %

36.4 %

4.8 %

Burglary Charges

18.9 %

73.1 %

2.8 %

Arson Arrests

21.5 %

65.8 %

9.5 %

Felony Drug Charges

55.8 %

26.2 %

16.1 %

School-Based Weapons Arrests

37.2 %

52.1 %

7.7 %

Non-School-Based Weapons Arrests

56.7 %

35.7 %

4.1 %

Source: Pennsylvania Juvenile Justice Data Book, 1998

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

In 2000, females accounted for 20 percent of all delinquency dispositions in
Pennsylvania, somewhat less than the national average, with African American
females representing approximately 33 percent of all female delinquency
dispositions.33 Females, however, represented only 9 percent of all delinquency
cases in 1992, and 17 percent of all delinquency cases in 1996.34 Females were
underrepresented in placements, accounting for 11 percent of all placements in
2000; they were also underrepresented in probation dispositions, accounting
for only 16 percent of the total.35 Selected data on specific offense categories
by gender in 2000 are set forth in Table 7 below:

515
TABLE 7
Offense

Percentage Of Females

Aggravated Assault Charges

29.1

Simple Assault Charges

15.6

Homicides

15.6

Larceny-Theft

18.6

Fraud

25.1

School-Related Weapons Arrest

23.4

Obstruction of Justice

23.7

Disorderly Conduct

22.4

Non-Payment of Fines

33.3

Other Public Order Offenses

21.8

Source: Pennsylvania Juvenile Justice Data Book, 2000

By contrast, females accounted for 9.5 percent of arrests for robbery, and
8.3 percent of arrests for burglary.36

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

STAKEHOLDER INTERVIEWS

516

The statistics cited above make it clear that minorities are
disproportionately involved at all stages of the juvenile justice system,
compared to their actual representation among the youth population ages
10 to 17 in Pennsylvania. It is also clear that Pennsylvania, like the country
at large, has recently experienced a significant increase in the percentage of
females referred to the juvenile justice system. In discussing these findings
with selected stakeholders throughout Pennsylvania, the Committee heard
certain themes emerge with respect to each population.

FEMALES

Among all juvenile justice professionals interviewed,
there was nearly unanimous agreement that programs
for females were inadequate both in terms of quantity
and quality.
The steady influx of females into the juvenile justice system over the past
several years and the implications of that influx provoked two common
responses among people interviewed. First, the individuals interviewed
lamented the lack of adequate programs for the growing number of young
female offenders; and second, many respondents described girls as more
“complicated” than boys.

“It doesn’t take much for a girl to get whisked through
the system and end up in a secure facility. Some girls
are in a secure facility without a felony adjudication.”
—Larry Demooy

Among all juvenile justice professionals interviewed, there was nearly
unanimous agreement that programs for females were inadequate both in
terms of quantity and quality. A frequent complaint concerned the lack of
either community-based or more secure placements for females. Honorable
Kimberly Clark, of Allegheny County, objected to the Commonwealth’s failure
to provide females with non-secure programs and drug and alcohol programs.37
Larry Demooy, director of juvenile probation in Delaware County, remarked:
“It doesn’t take much for a girl to get whisked through the system and end up
in a secure facility. Some girls are in a secure facility without a felony
adjudication.”38

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

There is also widespread recognition that facility programming for the
juvenile justice system, at both the county and state level, does not
sufficiently take into account gender differences and gender-based needs.
Georgene Siroky, a public defender in Allegheny County, referred to
juvenile girls in the system as “round pegs hammered into square holes.”39
John Delaney, assistant district attorney in Philadelphia’s juvenile unit,
concurred, noting that the juvenile justice system uses a masculine model.40
Judge Clark criticized a Youth Development Center (YDC) Program for
girls in Danville for failing to address the particular health needs of African
American females.41
With respect to the second theme that girls are more complicated, girls’
emotionality was frequently cited as an obstacle to working with them.
Many would concur with Demooy’s understanding that “underlying many
of the female referrals are substance abuse, mental health and family
problems … Few female delinquents are straight delinquents.”42 Honorable
J. Lawrence Stengel, of rural Lancaster County, noted that while offenders
in the juvenile justice system generally have emotional and mental health
problems, this trend was particularly observable among the girls currently
entering the system.43 Judge Stengel expressed concern with the system’s
failure to adequately address girls’ mental health needs.44 Karen Schill, an
administrator at the Bucks County Juvenile Detention Center, said that, in
general, girls were harder to place, and “the ones who are more difficult are
held a lot longer in the ... detention center.”45 Judge Clark acknowledged
that girls were more frequently held in secure detention because of their
greater propensity to run away, and cited the lack of alternatives short of
locking them up.46
At least two of the probation officers interviewed called for a more sensitive
approach to girls’ extensive emotional histories. The answer, in Demooy’s
view, is to create specialized caseloads, identifying individuals who wanted to
work with girls, and creating different programs.47 Similarly, while another
probation officer, Denise Ray, acknowledged that there may be “some truth”
to girls being too emotional, she indicated that “agencies and professionals
have to learn the best way to work with them. They have to know the
personal characteristics of girls; how to interact with them. They have to
know what works, what strategies to use, and what programs to
implement.”48

517

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

The issue of pregnancy was also raised by several juvenile justice
professionals. “Girls get pregnant and are therefore more complicated,”
said Steve Custer, chief juvenile probation officer in Montgomery County.49
Sister Rita Murillo, another public defender in Allegheny County, said
young women get pregnant “to avoid being sent to boot camp.”50 Delaney
noted that the more divergent a young woman was from “normal”—i.e.,
pregnancy, low I.Q., serious mental health issues—the longer it took to
resolve the case.51

518

In addition to interviewing judges, probation officers, and other professionals
in the juvenile justice system, a group of female juveniles themselves were
interviewed. The interviews were conducted at a community-based shelter
facility for young women who were held either to await trial or to await
placement after having been adjudicated delinquent. A representative of the
local public defender’s office had been meeting with the residents approximately
twice a month to talk about recent developments in their cases, and to give
them an opportunity to ask questions. Asked to comment on their perceptions
of the system, the young women expressed views with several common themes:
•

The young women believed that their probation officers did not pay
enough attention to them.

•

They believed they had no say or involvement in decisions made about
their future or future placement.

•

They believed that once they had been in detention for an extended
period of time, they were not given the opportunity to prove themselves
or show that their behavior had improved.

•

They objected to the large number of out-of-state placements and
wondered why they had to go so far away from home.

The desire to prove themselves, or explain themselves, was a recurrent
wish. One young woman explained that she had violated probation because
of problems at home, but that her probation officer “wasn’t interested in
why.” Another complained that past negative events in her file constantly
“came back to haunt her,” and she wanted her probation officer to focus
on recent and current events in her life, including improvements and
positive developments, rather than on her offenses or mistakes.
The young women suggested that placements be made available specifically
for those who have trouble getting along with their families, with a focus
on improving family relations. Feeling someone was on their side at home,

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

they said, would prevent secure placements, as well as probation violations.
The issue of home and family was prominent, as the young women also
suggested shorter eligibility periods for home passes when they were placed
elsewhere.
Finally, the young women objected to their lack of input or involvement
in decision-making in their cases. Describing their cases as “out of control,”
they complained that neither probation officers nor judges listened to them.
They said that judges and probation officers talk about their cases, but not
to the young women directly.

MINORITY YOUTH
There was general agreement among stakeholders in counties with significant
minority populations that minorities were disproportionately represented
in their juvenile justice systems.52 There was little agreement, however, on
the cause of this phenomenon. Additionally, even in counties where the
overrepresentation of minority youth in the system was widely recognized,
there were virtually no mechanisms in place to address or limit it.53
While no single explanation was offered, respondents repeatedly pointed
to three particular factors as likely contributors to the disparities: poverty,
family instability, and different police and intake practices in urban
counties, as compared with rural and suburban counties.54
Economic disparities among youth, combined with limited family
involvement or family support, were frequently cited as leading to more
pre-trial detention for minority youth. Asked about releasing youth before
their trials, judges and probation officers alike acknowledged that they
were reluctant to do so unless they were certain that a family member
would assume responsibility for supervising the youth at home and in the
community, and for making sure that the youth would return to court for
trial. One judge said that if the family was willing to impose structure, the
court would be more inclined to send the child home; if the family was not
involved in the child’s life, then the court felt it had no alternative but to
become involved.55 A probation officer noted that even the absence of a
telephone in the home could lead to pre-trial detention, since alternative
modes of supervision such as electronic monitoring would then be
unworkable.56 Another judge referenced the overlap between dependency
and delinquency, commenting that when the child’s home appeared
unsuitable as a place for him to return, placement was more likely.57

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RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

Finally, some respondents expressed the opinion that youths who were able
to afford private counsel were more successful at avoiding placement than
youths represented by court-appointed counsel—an economic disadvantage
more likely to affect minority youths than non-minority youths.58

520

Variations in police arrest and intake practices, based upon the location of
the police, were also deemed to account for disparities in the treatment of
minority youth. For example, in one large county with both urban and
suburban areas and multiple police districts serving each, suburban police
reportedly were more likely to release youth pre-trial than drive them a
substantial distance to the county detention center.59 In other suburban or
more rural counties, with smaller concentrations of minority youth, police
and probation officers divert60 substantially higher percentages of cases
than are diverted in larger urban counties.61
Finally, while there was no consensus about the reason for
overrepresentation, respondents in counties with significant minority
populations readily agreed that more minority personnel were needed
throughout the juvenile justice system.62

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

PUBLIC HEARING TESTIMONY
During the public hearings it conducted around the Commonwealth, the
Committee received testimony from prominent individuals in Pennsylvania’s
juvenile justice system. Those testifying presented statistical data, shared
personal experiences, and offered suggestions to remedy racial and gender
bias in the treatment of juveniles in Pennsylvania courts. Several dominant
themes were expressed throughout the public hearings.
The need for more attorneys, particularly minority
attorneys

The testimony evidenced a strong consensus that there is a need for
more attorneys, specifically minorities, in the juvenile court system. Ellen
Greenlee, the director of the Philadelphia Defender Association, testified
that because of a disproportionately large volume of cases and a lack of
adequate funding, her office is “asking a small number of [attorneys] to
do too much work.”63 This problem is exacerbated by the fact that the
attorneys are underpaid, which makes minority recruitment and retention
very difficult.64 The director testified that the lack of funding not only hurts
recruitment efforts, but seriously impedes the ability of public defenders
and court-appointed counsel to represent their indigent clients adequately.65
Scott Hollander, the executive director of Allegheny County’s Legal Aid For
Children (KidsVoice), agreed with the need to hire more minority attorneys,
and spoke of the same stumbling blocks, such as low salaries and
burdensome caseloads, that were mentioned at other hearings. He testified
that qualified African American attorneys have opportunities to obtain
higher-paying positions in the private sector, making it difficult for nonprofit agencies like KidsVoice to recruit them.66
Michael Muth, the chief public defender for Monroe County, reported
that his county tends to fund the district attorney’s office before the public
defender’s office. He noted that each of Pennsylvania’s 67 counties sets its
own salaries for both offices.67 While each county is different, he said they
all offer very low starting salaries, especially for pubic defenders.68 He
recalled a judge and former county commissioner informing him that there
was no political capital to be gained by giving public defenders money.
Directing money to the district attorney was perceived as fighting crime,
the judge told him, but funding the public defender’s office was perceived
as helping “scumbags” get off.69 Muth urged counties to reduce the

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RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

disparity in salaries between public defenders and district attorney’s
offices, and to offer a salary track with more substantial salary increases.70
He observed that if public defenders and district attorneys are not paid
appropriate wages, they cannot effectively represent their communities.71

522

Muth also testified that only one attorney is employed in his county’s
juvenile court division. That attorney is a recent law graduate and is
responsible for handling hundreds of cases, well in excess of the maximum
yearly caseload recommended by the National Advisory Council.72 Muth
observed that when a public defender is overworked, underpaid, or does
not receive regular training on new issues, a defendant’s right to counsel
is meaningless.73
Other testimony supported the view that there is an urgent need for more
attorneys in the juvenile justice system to ensure that juvenile defendants
across the Commonwealth are adequately represented.
Lack of facilities and programs for female juveniles

Honorable Mark Ciavarella, of Luzerne County,
testified at the Wilkes-Barre hearing that the lack of
adequate facilities for young women led to disparate
treatment between males and females during sentencing
and placement.
The witnesses reiterated the Committee’s finding that the juvenile justice
system has had an influx of female juveniles over the past several years. One
cited key findings of a national juvenile court statistics report suggesting that
delinquency caseloads for female juveniles rose 83 percent between 1988 and
1997, a much faster pace than the 39 percent increase in cases for males.74
Honorable Kathryn Lewis, of Philadelphia County, noted the disparity in the
treatment of offenders in male and female juvenile rehabilitation facilities.
She testified that she was told that there are no good programs for young
women because they are “too difficult to handle.”75 She expressed concern
about the lack of regional facilities in which to place young women,
observing that the effect of such a deficiency is that a 14-year-old girl
from Pennsylvania was likely to be sent to a facility in Texas at a cost
of $200,000 per year.76

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

Honorable Mark Ciavarella, of Luzerne County, testified at the WilkesBarre hearing that the lack of adequate facilities for young women led to
disparate treatment between males and females during sentencing and
placement.77 He testified that until recently in Luzerne County, if a male
and a female juvenile appeared before him for the same offense, he had no
choice but to send the female to an institution that would not release her
for 90 days, and the male to an institution where he could be released
within 30 days.78 He indicated that because the demand for placement
is so high, program administrators have the luxury of picking the “best”
juveniles to fill their programs, which often shuts out the “hard-to-handle”
females from good rehabilitation programs.79 Other testimony confirmed
that throughout the Commonwealth, many females are being held in
detention facilities and community-based shelters for longer periods of
time than males, and that many of them are being held simply because
there are no placement facilities or programs for them.80
Overrepresentation of male juveniles in the system

Despite the significant increase in female cases, however, witnesses testified
that males are still overrepresented in juvenile court.81 At the Erie public
hearing, Thomas Gamble, professor of criminal justice at Mercyhurst College,
testified that in Erie County, arrests of male juveniles outpaced the arrests of
female juveniles by a factor of three to one.82 Assuming a relatively equal
proportion of males and females in the Erie County juvenile population,
Gamble concluded that this represents a clear example of the disproportionate
juvenile male involvement in the Erie County juvenile justice system.83
Overrepresentation of minorities in the system

Gamble also provided statistical evidence of minority overrepresentation in
the Erie County juvenile justice system. He testified that while white juveniles
account for 90 percent of the population, they were 84 percent of the 1999
juvenile arrests in Erie County. Conversely, African American juveniles
accounted for 15 percent of the 1999 juvenile arrests but less than 10 percent
of the juvenile population.84 When examined as a percentage of the total
population, Gamble testified, African American juveniles were almost twice
as likely as white juveniles to face arrest.
Another study established that minority youth are overrepresented among
juvenile detainees in Pennsylvania. Daniel Elby, chief executive officer of
Alternative Rehabilitation Communities, Inc., testified in Harrisburg about
the organization’s study of the apparent racial disparity in the proportion
of minority juvenile detainees. The investigation was based on the detention
disparities in the 14 Pennsylvania counties with the highest minority

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RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

524

populations. He testified that while minority juveniles between the ages of
10 and 17 represented only 12 percent of the population in these counties,
75 percent of the juveniles confined in secure detention correctional
facilities were minorities.85 He indicated that the study found that minority
juveniles, particularly African Americans and Latinos, were more often
formally processed in the juvenile justice system than whites. The study also
found that African American and Latino juveniles were more likely to be
detained in public, secure facilities, while whites were more likely to be
placed in private group homes and to receive drug and alcohol outpatient
treatment. In terms of the basis for detentions, he testified that it was more
likely for minority juveniles than whites to be detained for drug possession
and crimes involving physical harm to another person.86
Similarly, Malik Aziz, executive director of The Ex-Offenders Program in
Philadelphia, testified that African American juveniles made up 15 percent
of the under-18 population, but were 33 percent of the juveniles sent to,
formally processed by, and convicted in court.87 Aziz also testified that
minority juveniles stood a better chance of being caught committing crimes,
as special investigative units such as drug-busting task forces made most
of their arrests in inner-city neighborhoods. He observed that African
American juveniles notice at an early age how the system reacts to them.
Once placed in the criminal justice system, they feel they cannot get a fair
shake because of the color of their skin, Aziz testified.88
Other testimony confirmed that juvenile minorities are overrepresented in
detention facilities, but suggested that the justice system was not to blame.
Gamble testified in Erie that African American juveniles made up only
7.7 percent of the population ages 10–17 in Erie County but accounted for
31 percent of all admissions to detention centers. This was four times higher
than would be expected based upon their proportion of the population.
Evidence for disproportionate African American involvement in juvenile
detention is clear, he concluded, but the question remains as to whether
non-racial factors may account for the disproportionality.89
Treatment and rehabilitation of juveniles

The statistical data notwithstanding, witnesses testified that Pennsylvania
has made efforts to prevent minority juveniles from entering the juvenile
justice system. The data suggests that while disparate decision-making or
bias may exist within the Commonwealth, some progress has been made
towards reducing minority overrepresentation at key processing points.
Witnesses agreed, however, that there is still a long road ahead.90

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

Several witnesses testified about the lack of community facilities in
which juveniles can constructively spend their free time, especially in inner
cities. There was an overwhelming concern for the lack of rehabilitation
opportunities and ways to positively assimilate juveniles back into society,
in order to prevent them from becoming repeat offenders. Testimony revealed
the success of a youth program in Harrisburg that accepted at-risk juveniles
who had been formally involved in the juvenile justice system. An evaluation
showed that, of those who attended the program on a regular basis, there was
only a 25 percent re-arrest rate. Of those who did not attend the program
regularly, approximately 50 percent re-entered the system.91
Judge Ciavarella testified that it is not just the juvenile who needs
rehabilitation; there must also be changes in the home environment.
Juveniles may show progress and begin to improve while residing in an
institution, but they tend to regress quickly when they are sent home if
nothing has been done to improve the environment.92 He testified that
intensive family therapy has reduced the re-entry rate in Luzerne County
from 60 percent to 13 percent.93
Other witnesses testified to the need for rehabilitation centers in cities with
high concentrations of juvenile delinquents. As Judge Ciavarella observed,
the problem with sending a juvenile away is that “There is no opportunity
for family counseling, and it is the family who has to deal with the juvenile
once they return home.”94

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RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

OTHER TASK FORCE FINDINGS
The Committee reviewed many of the reports prepared by other state task
forces on the issue of juvenile justice. The theme shared by many states,
which is reflective of the nation as a whole, is that minority juveniles are
overrepresented in the juvenile justice system.
A sampling of the findings follows.

526

California

The final report of the California Judicial Council Advisory Committee
on Racial and Ethnic Bias in the Courts was published in January 1997.
One chapter specifically referenced juvenile law issues and found, after
reviewing both statistical and anecdotal evidence, that the California juvenile
courts were more likely to detain poor children of color than their white
counterparts.95 In the juvenile justice system, minorities accounted for the
largest number of incarcerated offenders, even though whites accounted for
roughly 75 percent of all juveniles arrested.96 The report concluded that
disparate treatment in juvenile court and decisions sometimes informed by
bias could lead to higher detention rates and higher out-of-home placement
rates for minority juveniles.97
Massachusetts

The Gender Bias Study of the Court System in Massachusetts was
published in 1989. Focusing only on gender disparities in the juvenile
justice system, the report made several key findings relating to the special
needs and circumstances of female offenders.98 In the Massachusetts
juvenile justice system, status offenders such as runaways were serviced
by the Department of Social Services (DSS) and delinquent offenders by
the Department of Youth Services (DYS).99 Although there were serious
problems with the programs for male and female juveniles, girls were
disadvantaged to a greater extent than boys in the area of DSS and DYS
placement and service, the report concluded from statistical evidence,
testimony, and surveys.100
Testimony indicated that service providers viewed females as more difficult
to handle than males. Thus, even though in certain age categories more
females than males required services, providers offered fewer programs for
females. Judges, in turn, committed a disproportionately high percentage of

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

females to DYS in hopes that the females could be secured, stabilized, and
provided with services not available from DSS. They based commitment
either on contempt charges in Children in Need of Services (CHINS) cases
or on detention for a minor delinquency offense. Unfortunately, the
evidence indicated that females often did not receive the services they
needed at that point either, because the majority of the programs offered
by DYS were male-oriented. In essence, females were being detained to a
greater extent than their actions merited in the hope that they could be
helped, yet at no point were services sufficient to give them the help they
required. Testimony from the representatives of DYS revealed that the
department was attempting to address the lack of female-oriented programs
and facilities.101
The report recommended that training for judges and probation officers
should address possible paternalistic and protective attitudes that may
cause them to place females in more protective settings than were
warranted. At the same time, the report suggested that the system was
perhaps underestimating males’ need for protection.102 The report also
urged DSS to recognize the needs of its female clients such as drug
counseling and parenting assistance, and to provide programs that met
those needs.
Ohio

The Report of the Ohio Commission on Racial Fairness was issued in 1999.
The Department of Youth Services (DYS) provided the commission with
statistical data for fiscal years 1996 and 1997 regarding the race distribution
of felony and non-felony commitments.103 Along with gathering its own data,
the commission relied on the results of a study conducted by Bowling Green
State University (BGSU). The report, entitled Race and Juvenile Justice in
Ohio: The Overrepresentation and Disproportionate Confinement of
African-American and Hispanic Youth, focused on Ohio data and statistics
regarding minority youth participation in the criminal justice system.104
DYS reported that, for fiscal year 1997, 46.9 percent of the confined
population was white, while 53.2 percent of the population at DYS
consisted of minorities.105 Because Ohio’s total minority youth population
was 14.3 percent, this data illustrated the substantial overrepresentation of
minorities in the juvenile justice system.106

527

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

528

After analyzing the Ohio statistics, the BGSU study recommended an
examination of city crime patterns, patrol manpower allocation assignments,
and police decisions to arrest or release in order to determine why more
minority youth were arrested than white youth. The study recommended
that the state develop a uniform policy with respect to records of informal
sanction processes ranging from school discipline to unofficial handling of
referrals to juvenile court. The study also recommended that Ohio either
develop model community-based alternative pre-adjudicatory release and
monitoring programs, or adapt existing programs such as electronically
monitored house arrest. Finally, the study suggested that Ohio consider
amending the state statutory or local operating policies, specifically related
to guardian issues, which indirectly place minority youth at greater risk for
detention.107
New Jersey

The New Jersey Supreme Court Task Force on Minority Concerns issued
a final report in June 1992. The task force made specific findings as to
the nature and extent to which minority youth charged with juvenile
delinquency were treated differently than non-minority youth, and developed
recommendations for corrective action. The task force identified five major
areas of concern. First, the task force expressed concern that the judiciary had
not provided sufficient information to the minority community about the
operation of the juvenile justice system and the steps the judiciary was taking
to eliminate practices that were unfair to minority juveniles. Second, the task
force found an overrepresentation of minorities at all stages of juvenile
delinquency cases. Third, the task force identified a shortage of available
services for juvenile delinquents, and an unequal distribution of those services
between minority and non-minority youth charged with delinquency, as well
as between communities with large minority populations and communities
with small minority populations. Fourth, the task force cited a lack of
programs offering alternatives to the incarceration of minority juveniles.
Finally, the task force found some judges and court staff to be insensitive to
racial and ethnic differences, leading to their failure to treat minority juveniles
fairly and compassionately.108
The task force found overwhelming evidence that the structure of the
juvenile justice system led to unjustifiable disparities in the treatment of
similarly situated juveniles of different races and ethnic groups. While the
actual amount of disparity that occurred within the individual components
of the juvenile justice system remained unclear, there was no doubt that
some disparate treatment of minority youth occurred in each component of
the juvenile justice system.109

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

The task force recommended that the Supreme Court of New Jersey set
goals to reduce the number of minority juveniles incarcerated and to ensure
that judicial decisions involving minorities were fair.110 The task force also
recommended that the judiciary play a lead role in the development of
additional community alternatives that would provide adequate levels of
supervision for juveniles for whom family supervision was lacking.111
Connecticut

To assess the disparities in how juvenile justice systems handled minority
juvenile offenders, the Connecticut Juvenile Justice Advisory Committee
(JJAC) commissioned a research team to conduct a comprehensive and
independent study to determine the extent to which minorities were
overrepresented in Connecticut’s juvenile justice system. In May 1995,
Connecticut’s Office of Policy Management released their report, entitled
An Assessment of Minority Overrepresentation in Connecticut’s Juvenile
Justice System. The report documented a disproportionate representation
of African American and Latino juveniles at three key points in the juvenile
justice system: arrest, detention, and commitment to the state-run secure
residential juvenile facility.112
Although the report showed that minority youth have an increasingly
greater chance of overrepresentation as they progress through the juvenile
justice system, overrepresentation at various stages was reduced when
certain social, offender, and offense variables were considered. A lack of
pre-adjudication placement options short of secure detention for youth
also influenced overrepresentation. While the Juvenile Justice Committee
recognized that minority overrepresentation existed in Connecticut’s
juvenile system, it concluded that this disparity was as likely to be traced
to socioeconomic factors as racial or ethnic identification.113
In 1995, Connecticut passed legislation that addressed the need for
graduated sanctions as part of its commitment to ensure and exhaust
all appropriate efforts to keep a child in the community. The legislation
mandated that 14-year-olds and 15-year-olds accused of the most serious
crimes be tried as adults. Judges and prosecutors were granted more pretrial options as alternatives to detention, including community-based
treatment. The legislation also gave juvenile officials the authority to
send young offenders to substance abuse programs, and created early
intervention programs in an attempt to modify the juvenile’s behavior.

529

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

CONCLUSION
The overrepresentation of minority youth in the juvenile justice system is
well documented in Pennsylvania. Equally well established is the growth in the
involvement of female juvenile offenders in the system over the past 10 years.
Causes for each of these phenomena are not clear but the evidence strongly
suggests the following:

530

•

Racial and/or ethnic status influences decision-making within the juvenile
justice system, and when bias does occur, it is found at all stages of the
process.

•

Females are brought into the juvenile justice system in greater numbers,
in part because of a change in law enforcement’s responses to their
behavior, and in part because of long-standing attitudes among juvenile
justice professionals that reflect less tolerance for certain behaviors
among girls than boys. Family and social conflicts are often associated
with female involvement in the juvenile justice system, which is not the
case for males. Once in the system, females have few facilities available to
them, and those that exist are ill-equipped to treat the underlying causes
of delinquency.

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

RECOMMENDATIONS
The following recommendations are designed to address the problems of
both female and minority youth in the Pennsylvania juvenile justice system.

TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Include programs on the impact of race, ethnicity, and gender disparities
in the juvenile justice system at training sessions for attorneys who
practice in juvenile court, judges, and court personnel, including
probation officers.
2. Establish guidelines for maximum caseloads for public defenders
and district attorneys in juvenile court, consistent with the National
Advisory Commission standards.
3. Direct county juvenile court judges, juvenile court administrators, and
probation staff to work together with the Pennsylvania Commission on
Crime and Delinquency (PCCD) to develop risk assessment instruments114
for secure detention. Such instruments have been effective in other
jurisdictions around the country in reducing disproportionate minority
confinement in secure detention facilities.

TO THE LEGISLATURE
The Committee recommends that the Legislature:
1. Allocate sufficient funds to the Court and/or the Juvenile Court Judges
Commission to promote the establishment of specialized probation
units to work specifically with female offenders, to promote the
establishment of mentoring programs for youth returning from
placement, and to promote effective aftercare probation services.

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RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

TO THE PENNSYLVANIA DEPARTMENT OF PUBLIC
WELFARE
The Committee recommends that the Department of Public Welfare
(DPW):
1. Assess the needs of female offenders in the juvenile justice system
to determine specifically what resources and treatment options are
necessary to meet their specialized needs.

532

2. In fulfilling its obligation to approve county children and youth budgets
that are consistent with DPW regulations and “needs-based” budget
guidelines, work with county children and youth agencies to ensure that
current regulations providing for the use of community-based alternatives
and resources, in-home services, and reduction of institutional placements
effectively address the special needs of young women and minorities in the
juvenile justice system. Limit the inappropriate use of secure detention for
young women and minorities in the absence of suitable alternatives and
resources, and, consistent with public safety, encourage the diversion of
young women in particular, who are more frequently charged with status
and other public order offenses, into the dependency system where that
system can better serve their needs, or to other community-based
resources.

TO COUNTY CHILDREN AND YOUTH
AGENCIES/JUVENILE COURT ADMINISTRATORS
The Committee recommends that county children and youth agencies and
juvenile court administrators:
1. Provide mentoring programs for juveniles returning from placement.
2. Ensure racial, ethnic, gender, and cultural diversity among their staffs.
3. Work closely with local school districts to promote successful transitions
for adjudicated youth from placement back to their regular schools.
4. Work together to promote and develop an integrated system of care for atrisk and delinquent females and their families, based on their competencies
and needs; to reevaluate risk and other assessment instruments for their
gender, racial, and ethnic sensitivity; to recommend alternatives that more
adequately identify the competencies and needs of at-risk and delinquent
females; and promote and develop alternatives to institutional placement
to help reduce the overrepresentation of minorities in public and private
juvenile correctional facilities.

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

ENDNOTES
············································
1

Poe-Yamagata, E., and Jones, M., And Justice for Some: Differential Treatment of Minority Youth
in the Justice System, pp. 1–3 (Washington, D.C.: Building Blocks for Youth, 2000) [hereinafter
Poe-Yamagata and Jones].

2

Justice by Gender: The Lack of Appropriate Prevention, Diversion and Treatment for Girls in the
Justice System, p.1 (Washington, D.C.: American Bar Association and National Bar Association,
2001), attached in Appendix Vol. III [hereinafter Justice by Gender].

3

Snyder, H., Juvenile Arrests, p. 4 (Washington, D.C.: Office of Juvenile Justice and Delinquency
Prevention, 2000).

4

On behalf of the Committee, the Juvenile Law Center staff conducted telephone interviews with the
following individuals:
Steve Custer, Chief Juvenile Probation Officer, Montgomery County
Sharon Giamporcaro, Montgomery County District Attorney’s Office, Juvenile Division
Larry Demooy, Chief Juvenile Probation Office, Delaware County
Georgene Siroky, Public Defender’s Office, Allegheny County
Sister Rita Murillo, Public Defender, Allegheny County
Marc Waileirtch, Public Defender, Allegheny County
Karen Schill, Juvenile Detention Center, Bucks County
John Delaney, Assistant District Attorney, Juvenile Unit, Philadelphia County
Denise Ray, Deputy Chief, Juvenile Probation, Philadelphia County
Notes from these interviews are attached in Appendix Vol. III.

5

Work Group co-chair, Robert Listenbee, met and conducted personal interviews with the following
individuals:
Honorable Kimberly Clark, Allegheny County
Honorable Elizabeth Kelly, Erie County
Honorable Thomas King Kistler, Centre County
Honorable J. Lawrence Stengel, Lancaster County
Stephen A. Zappala, Jr., District Attorney, Allegheny County
Karen Arnold, Assistant District Attorney, Centre County
Beth Vanstrom, Assistant District Attorney, Erie County
Donald Totaro, District Attorney, Lancaster County
Ken Brown, Assistant District Attorney, Lancaster County
Jeff Conrad, Supervising Attorney of Juvenile Court, Lancaster County
Cindy Murphy, Assistant Public Defender, Centre County
David Mueller, Chief Probation Officer, Lancaster County
Thomas Backenstoe, Chief Juvenile Probation Officer, Centre County
Notes from these interviews are attached in Appendix Vol. III.

6

Juvenile Law Center staff visited Girls and Boys Town, a community-based detention service in
Philadelphia for girls awaiting trial as delinquents, or awaiting placement after adjudication of
delinquency. The Center staff met with female residents in a group.

7

Pub. L. 93-415, 42 U.S.C. 5601 et seq.

8

Section 5665 (a)(8) of the Juvenile Justice and Delinquency Prevention Act of 1974, as amended.

9

Disproportionate Minority Confinement Technical Assistance Manual (Washington, D.C.: Office of
Juvenile Justice and Delinquency Prevention, 2000).

10

Hamparian, D., and Leiber, M., Disproportionate Confinement of Minority Juveniles in Secure
Facilities: 1996 National Report, pp. 1–4 (Champaign, IL: Community Research Associates, Inc.,
1997) [hereinafter Hamparian and Leiber].

11

Snyder, H., and Sickmund, M., Juvenile Offenders and Victims: 1999 National Report, p. 194
(Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, 1999) [hereinafter
Snyder and Sickmund].

533

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

534

12

Snyder and Sickmund, supra at 192.

13

Id.

14

Snyder and Sickmund, supra; see also Strom, J., Smith, S., & Snyder, H., Juvenile Felony
Defendants in Criminal Court, p. 3 (Washington, D.C.: Bureau of Justice Statistics, 1998).

15

Snyder and Sickmund, supra at 193.

16

Pope, C., and Feyerherm, W., Minorities and the Juvenile Justice System, p. 39 (Washington, D.C.:
Office of Juvenile Justice and Delinquency, 1992) [hereinafter Pope and Feyerherm].

17

Pope and Feyerherm, supra at 40.

18

Poe-Yamagata and Jones, supra at 1.

19

Id.

20

Villarruel, Francisco A. et al., Donde esta la Justicia? A Call to Action on Behalf of Latino and
Latina Youth in the U.S. Justice System, pp. 1–10 (Washington, D.C.: Building Blocks for Youth,
2002).

21

Id. at 4–5.

22

Id.

23

Id. at 7.

24

Justice by Gender, supra at 1.

25

Id. at 2.

26

Scahill, M., Female Delinquency Cases, 1997, p. 1 (Washington, D.C.: Office of Juvenile Justice and
Delinquency, 2000).

27

Justice by Gender, supra at 6–13.

28

Id.

29

Hamparian and Leiber, supra at 11–13.

30

Pennsylvania Juvenile Court Dispositions 2001, p. 46 (Shippensburg, PA: Center for Juvenile Justice
Training and Research, 2000) [hereinafter PA Juvenile Court Dispositions].

31

Puzzanchera, C., Kang, W., Poole, R. and Wan, Y., Easy Access to Juvenile Populations Online
(2002).

32

PA Juvenile Court Dispositions, supra at 41–44.

33

Female Juvenile Defenders: A Status of the States Report, p. 88 (Champaign, IL: Community
Research Associates, 1998).

34

PA Juvenile Court Dispositions, supra at 42.

35

Pennsylvania Electronic Juvenile Justice Data Book 2002 <http://209.166.182.185/openpage.asp >.

36

Id.

37

Notes from Listenbee Interview of Honorable Kimberly Clark, p. 3 [hereinafter Clark Interview].

38

Summary of Notes from Interviews by Juvenile Law Center, Interview of Larry Demooy, p. 2
[hereinafter Demooy Interview].

39

Summary of Notes from Interviews by Juvenile Law Center, Interview of Georgene Siroky, p. 3.

40

Summary of Notes from Interviews by Juvenile Law Center, Interview of John Delaney, p. 4
[hereinafter Delaney Interview].

41

Clark Interview, supra at 3.

42

Demooy Interview, supra at 2.

43

Notes from Listenbee Interview of Honorable J. Lawrence Stengel, p. 6 [hereinafter Stengel
Interview]

44

Id.

45

Summary of Notes from Interviews by Juvenile Law Center, Interview of Karen Schill, p. 3.

46

Clark Interview, supra at 2.

47

Demooy Interview, supra at 2.

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

48

Summary of Notes from Interviews by Juvenile Law Center, Interview of Denise Ray, p. 4.

49

Summary of Notes from Interviews by Juvenile Law Center, Interview of Steve Custer, p. 2.

50

Summary of Notes from Interviews by Juvenile Law Center, Interview of Sister Rita Murillo, p. 3.

51

Delaney Interview, supra at 3.

52

Clark Interview, supra at 1; Stengel Interview, supra at 2–3.

53

Notes from Listenbee Interview of David Mueller, p. 1, 7 [hereinafter Mueller Interview].

54

Clark Interview, supra at 2; Stengel Interview, supra at 4; Notes from Listenbee Interview of Beth
Vanstrom, pp. 2–4.

55

Stengel Interview, supra at 5.

56

Mueller Interview, supra at 2.

57

Clark Interview, supra at 2.

58

Mueller Interview, supra at 6.

59

Clark Interview, supra at 2.

60

“Diversion” is defined as releasing a child without referring the child to juvenile court for
prosecution. Diversion is also accompanied by referral of a child and his or her family to resources
within the community for supervision or assistance.

61

Id.

62

Clark Interview, supra at 5–6; Notes from Listenbee Interview of Honorable Elizabeth Kelly, p. 3;
Mueller Interview, supra at 7.

63

Testimony of Ellen Greenlee, Philadelphia Public Hearing Transcript, p. 296.

64

Id.

65

Id.

66

Testimony of Scott Hollander, Pittsburgh Public Hearing Transcript, p. 50 [hereinafter Hollander
Testimony].

67

Testimony of Michael Muth, Wilkes-Barre Public Hearing Transcript, pp. 136–139.

68

Id. at 139.

69

Id.

70

Id.

71

Id.

72

Id. at 147.

73

Id. at 145.

74

Testimony of Hunter Hurst, Pittsburgh Public Hearing transcript, p. 132 [hereinafter Hurst
Testimony]; Sickmund, M., Offenders in Juvenile Court 1997, p. 4 (Washington, D.C.: Office of
Juvenile Justice and Delinquency Prevention, 2000).

75

Testimony of Honorable Kathryn Lewis, Philadelphia Public Hearing Transcript, p. 33 [hereinafter
Lewis Testimony].

76

Id. at 33.

77

Testimony of Honorable Mark Ciavarella, Wilkes-Barre Public Hearing Transcript, p. 221
[hereinafter Ciavarella Testimony].

78

Id.

79

Id. at 222.

80

Id. at 220.

81

Hurst Testimony, supra at 132.

82

Testimony of Thomas Gamble, Erie Public Hearing Transcript, p. 105 [hereinafter Gamble
Testimony].

83

Id.

535

RACIAL, ETHNIC, AND GENDER BIAS IN THE JUVENILE JUSTICE SYSTEM

536

84

Id. at 106–107.

85

Testimony of Daniel Elby, Harrisburg Public Hearing Transcript, p. 71 [hereinafter Elby
Testimony].

86

Id. at 72.

87

Testimony of Malik Aziz, Philadelphia Public Hearing Transcript, p. 229.

88

Id. at 231.

89

Gamble Testimony, supra at 110.

90

Hurst Testimony, supra at 134.

91

Elby Testimony, supra at 74–75.

92

Ciavarella Testimony, supra at 224–226.

93

Id. at 224.

94

Id. at 225–226.

95

Final Report of the California Judicial Council Advisory Committee on Racial and Ethnic Bias in
the Courts, January 1997, p. 167.

96

Id. at 156.

97

Id. at 166–167.

98

The Massachusetts Gender Bias Study of the Court System, 1989, p. 6.

99

Id.

100

Id.

101

Id.

102

Id. at 8.

103

The Report of the Ohio Commission on Racial Fairness, 1999, p. 49.

104

Id. at 50.

105

Id.

106

Id. at 49.

107

Id. at 53–55.

108

The New Jersey Supreme Court Task Force on Minority Concerns, 1992, p. 144–145.

109

Id. at 170–171.

110

Id. at 23.

111

Id. at 24.

112

The Connecticut Office of Policy Management: An Assessment of Minority Overrepresentation in
Connecticut’s Juvenile Justice System, p. 60 (1995).

113

Id. at 61.

114

A “risk assessment tool” sets forth measures or criteria to identify risk factors in juveniles that
make them appropriate or inappropriate candidates for secure detention. Such tools are typically
used by intake workers and judges in the juvenile system to assist in making decisions on whether
to hold or release juveniles before trial. It has been shown in other jurisdictions that such
gatekeeping instruments reduce not only the overall population in juvenile facilities but in
particular, the minority population in those facilities.

14

THE INTERSECTION
OF RACIAL AND
GENDER BIAS

538

INTRODUCTION

550

CONCLUSION

551

RECOMMENDATIONS

552

ENDNOTES

THE INTERSECTION OF RACIAL AND GENDER BIAS

INTRODUCTION
State and federal task forces have been studying racial, ethnic, and gender
bias in the American justice system since the early 1980s. The majority of
these task forces divided their work into a study of either racial or gender
bias, but most did not address both in a single report. In the past few years,
however:

538

“The concepts of gender and race have come to be understood as
interactive rather than distinctive categories. While the phrase
‘women and minorities’ is oft repeated in law, participants in
law are coming to understand that ‘women’ include those of all
colors and that ‘minorities’ include those of both genders.”1
The 1994 report prepared by the Multicultural Women Attorneys
Network, The Burdens of Both, The Privileges of Neither, suggests that
since “one’s race, ethnicity or gender negatively impacts one’s success and
acceptance in the greater society, then certainly a combination of race,
ethnicity and gender would be even more potent—and possibly more
disadvantageous.”2
Recent reports studying equality in the courts, such as the reports
completed by the Third Circuit Task Force on Equal Treatment in the
Courts and by state task forces in Oregon, California, and Florida,
acknowledge that focusing on only race or only gender “may cause the
experiences of women of color to drop out of the equation.”3 Moreover,
scholarship in this area has created a growing awareness that bias towards
women of color is experienced as “more than race or sex bias alone, and
more than race plus sex.”4 Broadly speaking, at this “intersection” are
located the multiple characteristics that affect a person’s experiences
in society and in the legal system—where,“for example, gender, race,
ethnicity, age, disability, sexual orientation, and class—interrelate.”5
Legal scholars call this convergence “intersectionality.”6
Originally, the concept of intersectionality was developed as a way to discuss
the dilemma of women of color in bringing employment discrimination suits,
because “Title VII required them to plead either race or sex discrimination.”7
This can create a situation where the double discrimination confronting
women of color is not recognized by the courts. For example, in the case
DeGraffenreid v. General Motors, 413 F. Supp. 142 (E.D. Mo. 1976),
“the court refused to recognize the possibility of compound discrimination
against black women and analyzed their claim using the employment of

THE INTERSECTION OF RACIAL AND GENDER BIAS

white women as the historical base.”8 Conversely, in the process of
recognizing race discrimination against an African American woman,
claims of sex discrimination can be lost, as in Moore v. Hughes Helicopter,
708 F2d 475 (9th Cir. 1983). In Hughes, “the Court held that a black
woman could not use statistics reflecting overall sex disparity…because she
had not claimed discrimination as a woman but ‘only as a black woman.’”9
Thus, as noted by the Oregon Supreme Court/Oregon State Bar Report on
Gender Fairness, this Catch-22 makes it necessary to examine previously
unacknowledged relationships between characteristics that are commonly
categorized separately—such as race, ethnicity, and gender—in order to
understand how they may affect each other.10
There is also the danger of what the legal scholar Angela P. Harris
calls “gender essentialism—the notion that a unitary, ‘essential’ women’s
experience can be isolated and described independently of race, class,
sexual orientation, and other realities of experience.”11 Furthermore, “[a]
corollary to gender essentialism is ‘racial essentialism’—the belief that there
is a monolithic ‘Black Experience,’ or ‘Chicano12 Experience’”13 that fails
to take account of gendered ways cultures operate. Harris observes that in
an “essentialist world” the experience of African American women, for
example, will always be “forcibly fragmented” by those who are “only
interested in race” or those who are “only interested in gender.”14
A thorough discussion of intersectionality must therefore acknowledge
“suppositions and stereotypes deeply embedded in American culture.”15
Such notions commonly include stereotypes of poor, minority, and ethnic
women. But addressing intersectionality can also illuminate troublesome
issues such as the historical rift between race and gender underlying
feminism or “unconscious” racism. Unconscious racism and gendered
thinking, as some scholars note, is inherent in the behavior of “feminist
and civil rights thinkers” who have “treated black women in ways that
deny both the unique compoundness of their situation and the centrality
of their experiences to the larger classes of women and blacks.”16
While legal scholars have been writing about intersectionality for some
time, only a few fairness or equality task forces have addressed it directly.
This is the case for a number of reasons, most of which have to do with the
complexity of intersectionality and with staff and funding limits. The Third
Circuit Task Force on Equal Treatment in the Courts was the first federal
task force to address the “double bind of multiple discrimination often
experienced by women of color.”17 To date, Florida is the only state with
a judicial task force to conduct separate studies of women of color, and its
original commission limited its scope of inquiry to minority women in the

539

THE INTERSECTION OF RACIAL AND GENDER BIAS

judicial workforce.18 The Oregon Supreme Court/Oregon State Task Force
on Gender Fairness states that it was the first task force to specifically
incorporate issues of intersectionality in its methods of study. It focused on
the intersections of race and gender as well as intersections that have been
less widely studied.19 The report of the California Task Force on Racial &
Ethnic Bias addressed intersectionality, but acknowledged that the study of
racial and ethnic bias in the courts “involves complex issues, competing
interests, and the necessity of striking a balance that all committee members
can accept.”20

540
The Committee found that statements gathered in
Pennsylvania are remarkably similar to those gathered
by race and gender task forces across the country,
inasmuch as those who are in positions of privilege or
power, or non-minorities, often have a very different
perspective than women of color about whether
inequality and bias exist.
At its inception, the Committee recognized the importance of addressing
the intersectionality issue. Since it is one of the few judicial task forces to
address both race and gender in a single report, it was able to synthesize
some of its findings in a way that exposes the specific plight of women of
color. Through its public hearings, roundtable discussions, focus groups,
and surveys, the Committee sought comments from individuals across the
Commonwealth on the ways in which gender and race intersect in the lives
of women of color. Additionally, the Committee gathered information from
other sources such as law reviews, articles, and the reports of other task
forces. In this way, the Committee has been able to identify issues of
intersectionality in reported incidents of bias that might otherwise have
been understood as only a gender issue or only a racial issue, and to
consider how the two are connected.
The Committee recognizes that the common practice of comparing or
analogizing racism and sexism can marginalize the significance of race, and
has made an attempt to avoid that distortion by locating and including the
experience of women of color throughout its report.
Four principal themes emerged from the Committee’s research on
intersectionality. First, since much of the material gathered by the
Committee was anecdotal, different patterns of perceptions emerged,
depending upon who was commenting. The Committee found that

THE INTERSECTION OF RACIAL AND GENDER BIAS

statements gathered in Pennsylvania are remarkably similar to those
gathered by race and gender task forces across the country, inasmuch
as those who are in positions of privilege or power, or non-minorities,
often have a very different perspective than women of color about whether
inequality and bias exist.21 The relevance of race, gender, or race and
gender “is not reported equally by those who fall within the category of
‘majority’ and those who fall within the rubric of ‘minority.’”22 Second,
female attorneys of color face significant hurdles in the courts that are not
encountered by either white women or minority male attorneys. Third,
other female minorities, such as court employees and litigants who are
women of color, feel devalued and ghettoized; and fourth, female litigants
of color often face additional obstacles such as class, language, or cultural
issues that exacerbate their difficulties in the courts. It is significant to note,
with respect to this last point, that the majority of people living in poverty
are women and children.23 Their poverty, combined with gender and race,
has a profound impact on their courtroom experiences and can affect the
outcome of their cases.

DIFFERENCES IN PERCEPTIONS OF THE ROLE OF
RACE AND GENDER
Commenting on the perceptions of bias towards minority women, the
Third Circuit Task Force on Equal Treatment in the Courts noted:
“As might be expected with anecdotal data, the focus groups and
the public hearings produced much more dramatic differences of
perception about the role of gender and race in the court system,
particularly the role of race. On the one hand, in employee focus
groups, many minority females spoke of the devaluation of
women of color and expressed their skepticism about whether
they are treated fairly. In questionnaire comments, white females,
on the other hand, expressed their belief that, in the workplace,
women of color are advantaged by their race.”24
The Second Circuit Task Force Report, completed several years later,
documented very similar questionnaire responses:
“White and minority female attorneys and minority male
attorneys report that members of their own group are more
disadvantaged than other groups. White female attorneys,
for instance, observe that they are more disadvantaged than
minority male and minority female attorneys in private practice.
Similarly, minority male and minority female attorneys report
that they are more disadvantaged than white female
attorneys.”25

541

THE INTERSECTION OF RACIAL AND GENDER BIAS

542

These differences in perception have been found repeatedly in surveys
and questionnaires conducted by task forces across the country and by the
organized bar.26 In a 1999 interview, Philip S. Anderson, then President of
the ABA, recounted that he was struck by how it is still difficult for many
whites, particularly white males, to recognize that there is bias in the justice
system. The inability to recognize bias is one of the primary reasons for this
disparity in perceptions between women of color and non-minorities.
Anderson recalled observing an open discussion among conference
attendees during which “the white men said they saw no racial or gender
bias in the justice system and the black women said they all had
experienced it.”27 Although Anderson went on to say, “I came to the
inescapable conclusion that if they saw it, it’s there,”28 this is not the same
thing as recognizing these conditions independently of being told they exist.
Another significant reason for disparities in the perceptions of minority and
non-minority women regarding bias in the justice system is the dynamic of
power operating behind what Shelly Todd, a speaker at the Committee’s
public hearing in Harrisburg, called “white privilege.” By this Todd means,
“the privilege to acknowledge that you have [an] unearned privilege, but
to ignore what it means.”29 A professor of psychology at The Pennsylvania
State University who is also a woman of color spoke at the Committee’s
State College public hearing and suggested that “Judges who are white
are not aware of how whiteness has influence in terms of how they’re
treating somebody else…It’s only when you’re in a predominantly nonwhite community, when that begins to stand out.”30 Further, there is
nothing in the experience of minorities, especially minority women, to
counter their perceptions of a fundamentally biased and unfair system.
As reported by Jerome Mondesire, president of the Philadelphia NAACP:
“These perceptions of unequal and biased treatment in all aspects
of the justice system have been formed as a result of the personal
experiences of African Americans as well as anecdotal accounts
handed down throughout generations. The real lack of diversity
with respect to the numbers of minority judges, prosecutors,
court administrators, and chosen jurors only serves to reinforce
these perceptions.”31
On the other hand, anecdotal evidence gathered by the Committee indicates
that white females do not always take the position that minority women are
granted special privileges, nor are they ignorant of the plight of women of
color. Susan Yohe, a white female attorney who spoke at the Pittsburgh
public hearing, for example, noted that the most frequent complaint of
minority female attorneys “is that they simply aren’t accepted as intelligent

THE INTERSECTION OF RACIAL AND GENDER BIAS

lawyers,” and “that they have enormous difficulty [being] taken seriously.”32
She went on to say that when she compared the stories of minority female
attorneys to her own, or to those of other white women, she realized that
“their battle is far harder than ours.”33
Additionally, although the Committee’s focus groups on gender bias were
not designed to include racial bias, participants in all geographic areas raised
the subject on their own. In Erie, where there were no people of color in
either the attorney or court personnel groups, which were composed entirely
of white women, participants noticed, and commented on, the racial makeup
of their groups. They went on to discuss the disrespectful treatment of
minority attorneys and racial bias in the hiring of court personnel. In other
parts of Pennsylvania with low minority populations, members of focus
groups described biased treatment of African American attorneys and
African American criminal defendants. The view of these (white) focus group
participants was that racial bias is very likely to occur in areas where people
see few minorities in official positions in courtrooms and where juries may
contain few or no people of color.34

FEMALE ATTORNEYS OF COLOR ARE ESPECIALLY
DISADVANTAGED

“There are more challenges for a host of reasons—
lack of role models and mentors, and the lack
of opportunities to participate on challenging cases
or to work for significant clients.”
—Attorney Charlene Shimada

The second intersectionality theme noted by the Committee is that female
attorneys of color are especially disadvantaged. As was recognized by the
ABA’s Multicultural Women Attorneys Network, a joint project of the
Commission on Women in the Profession and the Commission on
Opportunities for Minorities in the Profession: “Multicultural female
lawyers are considered the most visible and disadvantaged group within
the legal profession.” The network observed that multicultural female
lawyers encounter “persistent and pervasive and unique barriers to career
opportunity, growth, and advancement.”35 More recent studies indicate that
this is still the case, revealing that 12 percent of all women and 2 percent of
all men said that in the past five years judges had assumed they were not
lawyers, but 9 percent of minority men and 33 percent of minority women
reported having such an experience.36 In California, “[A]n Asian American
female attorney appearing before the judge hearing her case was asked not

543

THE INTERSECTION OF RACIAL AND GENDER BIAS

only whether she was an attorney, but also whether she was licensed to
practice in California.” 37 Further, the 1994 report of the ABA Multicultural
Women Attorney’s Network notes that cultural differences can also be a
problem for minority female attorneys:

544

“Asian American women and Latinas acknowledged an
additional handicap: Their cultural upbringing stresses hard
work, harmony, and teamwork over the “blowing your own
horn” method of gaining prominence. As one Asian American
woman put it bluntly: ‘Our culture’s emphasis on education and
being a good student often means one doesn’t learn social,
communication, and political skills (“street smarts”) at home.
To get ahead, one has to learn how to do what the boys do:
Self-promote, socialize, build networks.’”38
Charlene Shimada, a partner at the San Francisco office of McCutchen,
Doyle, Brown & Enersen and one of the first women of color to hold
the title of managing partner, remarked in a recent article that attaining
management posts can be especially difficult for minority women. “There
are more challenges for a host of reasons—lack of role models and mentors,
and the lack of opportunities to participate on challenging cases or to work
for significant clients,” Shimada said, further noting that law firms have a
problem retaining women of color.39 According to the report, Miles to Go,
published by the ABA Commission on Opportunities for Minorities in the
Profession (now the Commission on Racial and Ethnic Diversity in the
Profession), “The attrition rate for minority women is higher than that for
any other group.”40
Information gathered by the Committee in focus groups conducted in
various locations throughout the Commonwealth shows that Pennsylvania
courtrooms can be a difficult place for female attorneys of color. For
example, an African American female attorney stated in the Philadelphia
focus group for attorneys:
“[W]hat irks me is when white attorneys come up to me and they
will have the audacity to say…‘My, you’re good at this.’ [It’s]
saying I shouldn’t be good and the way they do it, it’s with the
surprise like ‘Oh, my God’ and it’s because I’m black and I’m
female. They assume that we know nothing—that they know
everything. And I’ve been practicing law for 20 years. And I still
get it.”41

THE INTERSECTION OF RACIAL AND GENDER BIAS

Another Philadelphia focus group participant noted that even African
American male judges will single out African American female attorneys for
disparate treatment:
“You’re a black woman and if they can lord it up over anybody,
it’s you. And so there you are, you’re standing in front of them
and, if there’s one person they can make kowtow to them it’s
going to be the black woman. Because in the hierarchy they
can’t do it to the white men and they can’t do it to the white
women, so who’s left? There’s you.”42
The final report of the focus group discussions indicated that in a rural
Pennsylvania county, “African American women report that they are such
an oddity in some areas that people come to court just to see them. They
report having more trouble than Caucasian women getting and retaining
clients, because they are made to appear less credible in the courtroom by
judges, court personnel, and opposing counsel, and that reputation gets
around.”43
The small number of minority women in positions of power may also
exacerbate the problem. For example, Ted Darcus, executive director for the
[Pennsylvania] Governor’s Commission on African American Affairs, reported
that there is “a lack of positive role models within the justice system [of the
Commonwealth]. [African Americans] see few black judges, attorneys, and
other employees in the justice system and even fewer black females.”44 There is
also a dearth of minority women on the bench in Pennsylvania. According to
the AOPC, there are 431 judges in the Commonwealth as of 2002 and only
19, or 4 percent of this number, are non-white women, including only two
Latina women.45 In Oregon, there were no women of color serving as active
judges as recently as 1998. According to the Alliance for Justice, “[P]rogress
has been made in appointing women and minorities to the federal bench. Of
825 federal district and circuit court judges, 82 are black, 36 Hispanic, seven
Asian American, two American Indian and one Arab American…Another
124 are white women.”46 Significantly, no minority women are specifically
identified among these numbers.
Interviews conducted on behalf of the Committee by The Melior Group
and V. Kramer & Associates show that judges in Pennsylvania have
differing views regarding their abilities to change the racial and gender
composition of court personnel.47 As noted in the chapter in this report on
the employment and appointment practices of the courts, most counties in
Pennsylvania make no effort to recruit minorities or women for appointed
positions such as arbitrators, conflict counsel, hearing officers, masters,

545

THE INTERSECTION OF RACIAL AND GENDER BIAS

judicial clerks, and judicial staff.48 At the attorney focus group session
conducted in Pittsburgh, a participant stated: “I do see…the judges make
an extensive effort to hire minority law clerks…[T]he problem is, once
those law clerks do their time with the judge…they’re not offered a
job…The conclusion I’ve come to is they’re just not taken seriously.”49

FEMALE MINORITY COURT EMPLOYEES ENCOUNTER
ADDITIONAL BIAS

546

The experience of minority women employed by the courts is also inherently
problematic. In its 1991 report, the Florida Supreme Court Racial and
Ethnic Bias Commission found that minority women comprised only
1 percent of Florida’s judges, and only 6 percent of all judicial employees
who worked in the state court system were minority women.50 Further,
virtually no minority females occupied upper-level positions or were in
positions of authority. Those who were in supervisory positions reported that
their authority was consistently undermined and they were generally
“given less responsibility and discretion [than their non-minority and male
counterparts] in supervision of their subordinates.”51 In particular,
professional minority women, both employees and attorneys, reported
that they were disproportionately assigned trivial or less desirable work.

Clerical employees in the Philadelphia courts expressed
a similar sentiment that, because they are “black and
female” there were no advancement structures or raises
available to them.
The Report of the Third Circuit Task Force on Equal Treatment in the Courts
found that women of color are rarely employed above the clerical staff level in
the courts of the Third Circuit, which include all of the federal courts in the
Commonwealth.52 Furthermore, the Third Circuit Report notes that “even
where women of color have advanced, and attained supervisory positions,
these positions tend to be clerical rather than professional supervisory
positions.”53 The task force also discovered a significant disparity in the
salaries paid to white male employees and to African American female
employees, although the report does note that “Some of this disparity may
occur because minority females are more often in clerical positions, even in
supervisory roles.”54
Anecdotal evidence gathered by the Third Circuit Task Force revealed that
court employees who are also women of color face problems that are
similar to their professional peers. One court employee noted, for example,

THE INTERSECTION OF RACIAL AND GENDER BIAS

that the historical “lack of role models or mentors in management” created
an environment where “minorities were generally ignored or not directed
towards promotions.”55 Overall, the minority employees in the federal
system are primarily African American.56 Yet, participants from all groups
of employees expressed the belief that “women of color need more
credentials than other groups of either gender to be hired or promoted.”57
During one of the Committee’s focus group discussions for court personnel,
clerical employees in the Philadelphia courts expressed a similar sentiment
that, because they are “black and female” there were no advancement
structures or raises available to them.58 In part, that perception is based
on being treated as incompetent or unskilled, and generally undervalued.
The Court Personnel Report summary of the V. Kramer & Associates
and Melior Group Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, states that, individually, African American court
personnel experience bias primarily through slights and disrespect.59 This
is supported by the experience of a Philadelphia court reporter who noted,
“I was in the courtroom with a trainee—a Caucasian woman…she had on
jeans…I’m there in a suit, a little older…and the attorneys came over and
addressed her like she was the reporter…and I was just the trainee…”60 The
report of V. Kramer & Associates and The Melior Group further reveals
that judicial system employees are everyday observers of the courtrooms
who witness what they see as routine, disadvantageous treatment of
minority defendants. “Indeed, the sharpest, most emotional reactions to
race bias are expressed about the inequitable treatment of litigants and
defendants.”(emphasis in original)61

FEMALE LITIGANTS OF COLOR OFTEN FACE
ADDITIONAL DIFFICULTIES
Female litigants of color express a general feeling of distrust of the legal
system. When combined with gender and race, economic status and class
can have a profound effect on a litigant’s courtroom experience and can
affect the outcome of a case.62 The professor of psychology who testified
at the State College hearing stated this quite clearly:
“I’ve come to the conclusion that I don’t trust any judicial system
to be fair to me as an African American or a woman. The
distrust I have is based upon media exposure, professional
readings and the experiences of friends and colleagues. My
distrust is cultural. Despite how judicial personnel are trained
to operate, I don’t believe any individual can be truly objective
unless they’ve been raised in a cultural vacuum over the past
300 years. The bedrock of our society is based on racism,
classism, and sexism.”63

547

THE INTERSECTION OF RACIAL AND GENDER BIAS

548

Litigants report that courts do not understand their cultural backgrounds
and that this leads to misunderstandings that may compromise their cases.
Latin American and Arab women, for example, are said to be reluctant to
report domestic violence because of their cultural and religious practices
and beliefs.64 As discussed in the chapter on domestic violence in this
report, this can be an especially dangerous situation for women from
particular ethnic backgrounds, as they may be ambivalent about seeking
protection.65 African American women can also be reluctant to report
domestic violence or sexual assault because they believe that African
American men are treated harshly and unfairly by law enforcement and
the courts.

Female litigants of color express a general feeling of
distrust of the legal system. When combined with
gender and race, economic status and class can have a
profound effect on a litigant’s courtroom experience
and can affect the outcome of a case.
Federal, state, and local task force studies document the effect stereotypical
thinking has upon litigants, but find that judges seldom see their conduct as
biased. Judges themselves offered during interviews with the Committee that
“Some judges in domestic violence cases cannot understand why a woman
does not leave a man, and cannot relate to her economic dependency. Some
judges cannot understand different cultural norms that may be influencing
women, or different kinds of family relationships, such as might be
commonplace among Hispanics.”66 Several [judges] discussed the gap in
experience and understanding between middle-class Caucasian judges and
poor minority litigants. One judge characterized it as judges living in an
“ivory tower” of upper-middle-class biases.67 They commented on the
difficulty in understanding people with multiple families and children, the
lack of sensitivity to how hard it is for some litigants to earn even a modest
amount of money or live on minimum wage, and the different standards they
may have for what may be appropriate in their care of children.68
Poverty also exacerbates the problems women of color confront in the
courts. An attorney, quoted in the report of the New York Task Force
on Women in the Courts, noted:

THE INTERSECTION OF RACIAL AND GENDER BIAS

“As a Legal Services attorney, all my clients are poor and almost
all are women…In court, and by other attorneys, my clients are
never afforded the same respect as a typical litigant. When a
client is on welfare, other attorneys seem to feel freer to attack a
woman’s personal choices (i.e., to have children, to have multiple
sexual partners, to not be married) as a way to attack [her]
credibility and denigrate the client.”69
Such experiences are also reported in Pennsylvania. One public hearing
witness testified that it was impossible to “separate out the fact that when
you have money, you can buy the best attorney you can afford…and when
you look at the proportion [of the population] who has the money, it is not
going to be women of color.”70 Furthermore:
“Both those who had highly skilled legal representation and
those who did not made the point that class and economic
status are important issues in the courtroom. They point out
that disrespectful treatment of women is more likely to occur
when they are non-professional and poorer [sic]. The feeling of
interviewees…is that it is more likely to be people of color and
women who cannot afford representation than Caucasian
males.”71
The director of administration for the Pennsylvania Coalition Against
Rape commented at the Erie public hearing on the particular experience
of African American female litigants, especially in criminal matters:72
“The value…placed on African American women in our culture
is played out within the criminal justice system as well. She
knows that rape laws were developed to protect Caucasian
women, not all women. Knowing this, she is reluctant to
report that she has been sexually assaulted for fear of further
humiliation. She fears that no one will believe her, and even
deeper is the fear that no one will care.”73
Women with limited proficiency in English are especially affected as they
face a language barrier as well as a gender and ethnic barrier:
“It is especially difficult for women with language problems
and/or disadvantages based on economics to feel confident as
witnesses and litigants…Certainly, opposing counsel takes full
advantage of the situation and often the judge does not place
any limits on the scope of the situation.”74

549

THE INTERSECTION OF RACIAL AND GENDER BIAS

CONCLUSION

550

The purpose of addressing intersectionality is not to change views on gender
and race but “to ensure a more accurate evaluation of gender fairness and
racial fairness in the legal profession.”75 This means that “No significant and
lasting progress in combating either [gender or racial bias] can be made until
[the] interdependent aspect of their relationship is acknowledged, and until
perspectives gained from considering their interaction are reflected in legal
theory and public policy.”76 Towards this end, members of the Pennsylvania
bar and bench, and participants in the legal system statewide, should reexamine conduct and assumptions that marginalize women of color, and
work together to achieve equality for all participants in the courts of the
Commonwealth.

THE INTERSECTION OF RACIAL AND GENDER BIAS

RECOMMENDATIONS
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee recommends that the Court:
1. Direct the AOPC to collect data and research on the status of women
of color contrasted with white women and all men in the justice system,
focusing on salary levels, hiring, and promotion practices.
2. Consistent with Recommendations for the Supreme Court of Pennsylvania
in Chapter 8, ensure that selections for positions and pay scales for all
court personnel are merit-based.

TO BAR ASSOCIATIONS
The Committee recommends that bar associations:
1. Conduct educational programs about the existence of cultural, racial,
ethnic, and gender bias in the Pennsylvania justice system and the
negative impact this bias has on women of color in the justice system
in particular.
2. Appoint a special committee or division devoted to addressing the
particular issues faced by women of color who are attorneys and
judges. Establish a mentor or support network for these women.
3. Include more women of color in the planning of future conferences and
reports on bias in the justice system.

TO LAW SCHOOLS
The Committee recommends that law schools:
1. Affirmatively recruit more women of color as students and faculty, and
offer mentor networks for enrolled women of color.77
2. Provide opportunities for law faculty to become better informed about
the effects of racial, ethnic, and gender bias in their teaching and in the
legal education environment, and to consider ways of better educating
students about the effects of bias in the legal decision-making process.

551

THE INTERSECTION OF RACIAL AND GENDER BIAS

ENDNOTES

552

1

Judith Resnick, A Symposium on Finding a Path to Gender Equality: Legal and Policy Issues
Raised by All-Female Public Education, 14 N.Y.L. Sch. J. Hum. Rts. 230 (1997).

2

The Burdens of Both, The Privileges of Neither, A Report of the Multicultural Women Attorneys
Network, A Joint Project of the ABA Commission on Women in the Profession and The
Commission on Opportunities for Minorities in the Profession, p. 6 (August 1994).

3

Report of the Oregon Supreme Court/Oregon State Bar Task Force on Gender Fairness, p. 18
(1998) [hereinafter Oregon Report].

4

Washington State Minority and Justice Commission, Annual Report, p. 58 (2001).

5

Oregon Report, supra at 19.

6

A bibliography of representative writings is attached in Appendix Vol. III.

7

Lynn Hecht Schafran, Women of Color in the Courts, Trial Magazine, p. 21 (August 1999).

8

Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique
of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, Chicago Law Forum, pp.
139, 148 (1989) [hereinafter Crenshaw].

9

Id.

10

Oregon Report, supra at 19.

11

Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585
(February 1990) [hereinafter Harris].

12

“Chicano” is a term used by some to identify a person of Mexican-American heritage.

13

Harris, supra, at 588.

14

Id. at 589.

15

Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 41 Duke
L.J. 397 (1991) [hereinafter Caldwell].

16

Crenshaw, supra, at 150.

17

Report of the Third Circuit Task Force on Equal Treatment in the Courts, 42 Vill. L. Rev. 1355,
1539 (1997) [hereinafter Third Circuit Report].

18

Where the Injured Fly for Justice, A Ten-Year Retrospect on the Report and Recommendations of
the Florida Supreme Court Racial and Ethnic Bias Study Commission, p. 32 (2000).

19

Oregon focused on five specific intersections: “gender and race/ethnicity, gender and class, gender
and age, gender and parental status and gender and sexual orientation.” See Oregon Report, supra
at 21.

20

Final Report of the California Judicial Council Advisory Committee on Racial & Ethnic Bias in the
Courts, p. 138 (1997) [hereinafter California Racial & Ethnic Bias Report].

21

Resnick, supra, at 219.

22

Id. at 229.

23

Oregon Report, supra at 21.

24

Third Circuit Report, supra at 1378.

25

Jay C. Carlisle, Synopsis of the Report of the Second Circuit Task Force on Gender, Racial and
Ethnic Fairness in the Courts, 19 Pace L. Rev. 431, 435 (1999).

26

“Indeed, it is often said that perception is reality, and a survey of lawyers commissioned by the ABA
Journal and the National Bar Association Magazine points up striking differences. The results show
often conflicting perceptions for black and white lawyers, both on issues tearing at the heart of the
profession and in the routine, nuts-and-bolts workings of the justice system.” Terry Carter, Divided
Justice, ABA Journal, pp. 42–43 (February 1999).

THE INTERSECTION OF RACIAL AND GENDER BIAS

27

Id. at 42.

28

Id.

29

Testimony of Shelly Todd, Harrisburg Public Hearing Transcript, pp. 156–157.

30

Testimony of Beverley Vandiver, State College Public Hearing Transcript, p. 206 [hereinafter
Vandiver Testimony].

31

Testimony of Jerome Mondesire, Philadelphia Public Hearing Transcript, p. 48.

32

Testimony of Susan Yohe, Pittsburgh Public Hearing Transcript, p. 228.

33

Id.

34

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of
Gender Bias in the Courtroom , pp. 14–15 (2001), attached in Appendix Vol. III [hereinafter Melior
Group Gender Bias Report].

35

Third Circuit Report, supra at 1539.

36

Vicki C. Jackson, What Judges Can Learn from Gender Bias Task Force Studies, Judicature, Vol.
81, Number 1, p. 16 (July–August 1997).

37

California Racial & Ethnic Bias Report, supra at 150.

38

Hope Viner Samborn, Higher Hurdles for Women, ABA Journal, pp. 30–32 (September 2000).

39

Id. at 32.

40

Miles to Go, ABA Commission on Opportunities for Minorities in the Profession, (1998).

41

The Melior Group/V. Kramer & Associates, Racial Roundtable Discussion, Philadelphia Attorney
Transcript, p. 6, attached in Appendix Vol. III [hereinafter Melior Group Racial Philadelphia
Attorney Transcript]. See also Joe R. Feagin & Melvin P. Sikes, Living With Racism: The Black
Middle Class Experience, pp. 168–169 (Boston: Beacon Press, 1994) regarding the comments of a
young African American lawyer working in an East Coast law firm on the presumptions of her coworkers:
“They look at me as a young black, and they can’t believe I’m an attorney. They still open their
mouths like, ‘Oh, that’s who the new attorney is!’ And then it’s ‘I didn’t know you were a
(pause) woman.’ Well, my name is Judy, how many men named Judy do you know?…I’ve had
more than a number of them submit reports to my office and then call to ask me if I understand.
And my response to that is, ‘I understand English. Did you write what you meant? Well then,
yes, I understand.’”

42

Melior Group Racial Philadelphia Attorney Transcript, supra at 32.

43

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of
Gender Bias in the Courtroom, Attorneys Report, p. 3 (2001), attached in Appendix Vol. III; see
also The Melior Group /V. Kramer & Associates, Racial Roundtable Discussion, Harrisburg
Attorney Transcript, pp. 12–15, attached in Appendix Vol. III.

44

Testimony of Ted Darcus, Harrisburg Public Hearing Transcript, p. 114.

45

See Chapter 8 of this report, Employment and Appointment Practices of the Courts.

46

Debra Baker, Waiting and Wondering, ABA Journal, p. 53 (February 1999).

47

See Chapter 8 of this report, Employment and Appointment Practices of the Courts.

48

Id.

49

The Melior Group/V. Kramer & Associates, Racial Roundtable Discussion, Pittsburgh Attorney
Transcript, p. 8, attached in Appendix Vol. III.

50

Where the Injured Fly for Justice, Reforming Practices Which Impede the Dispensation of Justice to
Minorities in Florida, Executive Summary: Reports & Recommendations of the Florida Supreme
Court Racial & Ethnic Bias Commission, p. 15 (1990).

51

Id. at 16.

52

Third Circuit Report, supra at 1539.

553

THE INTERSECTION OF RACIAL AND GENDER BIAS

554

53

Id. at 1548.

54

Id.

55

Id. at 1552.

56

Id. at 1557.

57

Id.

58

The Melior Group/V. Kramer & Associates, Racial Roundtable Discussion, Philadelphia Court
Employees Transcript, p. 35, attached in Appendix Vol. III [hereinafter Melior Group Racial
Philadelphia Court Employees Transcript].

59

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, Court Personnel, p. 1 (2001), attached in Appendix Vol. III [hereinafter
Melior Group Racial Bias Court Personnel Report].

60

Melior Group Racial Philadelphia Court Employees Transcript, supra at 6.

61

Melior Group Racial Bias Court Personnel Report, supra at 1.

62

See Chapter 9 of this report, Perceptions and Occurrences of Racial, Ethnic, and Gender Bias in the
Courtroom.

63

Vandiver Testimony, supra at 194–195.

64

See Chapter 1 of this report, Litigants with Limited English Proficiency; see also Testimony of
Caren Bloom, State College Public Hearing Transcript, p. 167.

65

See Chapter 10 of this report, Domestic Violence.

66

The Melior Group/V. Kramer & Associates, Final Report on Perceptions and Occurrences of Racial
Bias in the Courtroom, p. 5 (2001), attached in Appendix Vol. III [hereinafter Melior Group Racial
Bias Report].

67

Id; see also Chapter 10 of this report, Domestic Violence.

68

Melior Group Racial Bias Report, supra at 4–5.

69

Report of the New York Task Force on Women in the Courts, 15 Fordham Urb. L.J. 123
[hereinafter New York Report].

70

Vandiver Testimony, supra at 200.

71

Melior Group Gender Bias Report, supra at 2.

72

Testimony of Jacqueline Mae Johnson, Erie Public Hearing Transcript, pp. 56–57 [hereinafter
Johnson Testimony]; See also Chapter 10 of this report, Domestic Violence, on the particular
concerns of African American women about subjecting African American men to the justice system.

73

Johnson Testimony, supra at 57.

74

New York Report, supra at 123.

75

Oregon Report, supra at 20.

76

Caldwell, supra, at 372.

77

The Committee understands that greater efforts must be undertaken to increase the declining
number of men of color in law schools.