A quick glance at statistics concerning the representation of minorities in the legal profession illustrates a disturbing if not alarming fact. Minorities are grossly underrepresented in the legal field. What are the underlying causes for the current lack of minority representation? There are several obvious factors as well as those that are not quite as easily recognized. Recent statistics cast a dim light on the current state of the legal profession as it pertains to minority involvement. Fewer than 10% of the nations 1 million attorneys are minorities. Minorities make up only 3.7% of all partners at U.S. law firms. (Iwata, 2004) These statistics are just the tip of the iceberg as they merely skim the surface of the aforementioned issue.
We are aware of the small number of minorities practicing law in relation to the number of minorities in the U.S. population. What we need to examine and understand is what are the root causes for the lack of representation. Only then will we be able take corrective action and institute the programs necessary to increase minority representation.
There are four broad areas which have been identified by law professors and American Bar Association officials as those in which change is needed. The first area is in Law-school admissions. Affirmative action policies which were once so actively pursued in the late 1970s and early 80s have become more frequently attacked and less supported. The result has been a sharp decrease in the number of minorities enrolled in Law schools across the country.
Secondly is in the area of Mentorship. This area is very closely related to the drop in minority representation in law school. Fewer minority law students equal fewer law school graduates. The obvious result of fewer graduates is a decreased number of minority attorneys working in the field and therefore limited availability of qualified mentors for minorities seeking guidance and direction. This is a vicious cycle which if not rectified will lead to even greater declines in minority representation in the future.
Cultural differences and racial biases continue to exist as obstacles in the career path of minorities seeking parity in the legal field. Dr. David Wilkins, a Harvard Law Professor describes an environment where African American prosecutors are often pigeonholed. They are frequently assigned drug and violent crime cases while their white counterparts are assigned complex financial cases. (Iwata) Wilkins feels that even those managers that support diversity, subconsciously stereotype their minority subordinates.
The three previous areas discussed lead to the high turnover rate in the legal profession. The rate of minority attrition is much higher for minorities than for white attorneys. (Iwata) In order to combat the high rate of attrition, many law firms are focusing on improving their minority recruitment. Another avenue taken by todays progressive firms is to review their current practices of hiring and promoting in order to revamp and restructure them. The expected goal of such strategies is the increased representation of minorities within the firms and the attracting of qualified applicants seeking employment in a fair and balanced environment.
I believe that an increased representation of minority lawyers in the legal arena will have a profound effect on the quality of representation of criminal defendants. A survey of African American and white lawyers conducted by the American Bar Association in 1998 revealed just how far apart the views of each group of attorneys are. When questioned on the amount of racial bias existing in the judicial system, over half of the African American lawyers responded very much while only 6.5% of the white lawyers answered in kind. ( Walker et al., 2004, p. 155) Court cases such as the Scottsboro case, the Lenell Geter case, and the James Newsome case, may have had an entirely different outcome with the presence of minority counsel and minority judges presiding. While the justice system has made great strides since the Scottsboro case in 1931, an effective argument can be made that there is a long road to travel before equal representation and justice is available for minorities.
Peremptory Challenges
I agree with the call for the elimination of the peremptory challenge as a tool to preserve an all white jury when the case involves a minority defendant. While the Supreme Court upholds the fact that a jury is to be made up of a cross section of the community, it does not place any such restrictions of the selection of individual jurors. What exists then is a loophole where the respective attorneys use their peremptory challenges to discard potential jurors often times using racially motivated reasoning. This practice can lead to minorities facing an all white jury and void of peer representation.
In 1965, the Supreme Court ruled in Swain v. Alabama that the prosecutors did not violate the Constitutions equal protection clause by removing all six African American from the jury pool with peremptory challenges. (Walker et al., p.186) As a result of the ruling, Robert Swain, a 19 year old African American was sentenced to death by an all white jury for raping a white woman. It seems inconceivable that anyone can realistically believe that a minority defendant can be afforded an impartial and fair trial by an all white jury. Yet the Swain ruling stood for 21 years until 1986 when in Batson v. Kentucky the Supreme Court rejected the Swain ruling. In essence the Batson ruling shifted the burden of proof that the jury selection is not based on race to the State, once the defendant presents a case of racial discrimination as it pertains to jury selection.
The issue of peremptory challenges will be a hotly contested one for years to come. Arguments can and have been made on both sides of the issue. The use of the challenge in and of itself is not an issue of racial discrimination. It is only when the challenge is used to eliminate an entire segment of the jury based on race that it becomes an issue. Instances such as the Scottsboro and Geter cases lend credence to the move to eliminate the peremptory challenges as a tool for comprising a racially hostile jury. The inherent problem with the challenges is that instead of selecting intelligent open-minded citizens who will take in all of the evidence and come to an educated conclusion on guilt or innocence, the end result is a jury that is comprised of hand selected sympathizers that each side (prosecution and defense) believe will vote their way.
Defenders of the peremptory challenges argue that its use helps to achieve a fair and impartial jury. They believe the challenges are used to eliminate jurors who may be predisposed to vote against their clients based on prejudices, or preconceived beliefs. The assumption is that each side will size up potential jurors and use its challenges to eliminate real or imagined partiality or bias that may be based on a hunch, an impression, a look, or a gesture. (Walker et al., p.190)
While I believe there have been great strides made in decreasing the existence of racial discrimination in the jury selection process and therefore in the fair representation of minorities in the courtroom, there still exists a need for reform. The issue of selecting juries using racially motivated peremptory strikes needs to be further addressed. Only when juries are selected in a bias free manner will the U.S. criminal justice system be truly color-blind.
References
ABA Network. Commission on Racial & Ethnic Diversity in the
Profession (n.d.) Retrieved May 1, 2005, from http://www.abanet.org/minorities/links/2000census.html
Iwata, E. (2004, September 9). Legal industry still lacking in
minorities. USA Today Retrieved May 21, 2005, from
