Commission to Study Racial and Ethnic Bias in the Courts
Radisson Inn, Bismarck
January 20, 2012
10:00 a.m. Call to Order.
Hon Donovan Foughty, co-chair Justice Carol Ronning Kapsner, co-chair Hon. Sonna Anderson Griselt Coral Andrade Pat Bohn for Leann Bertsch Scott Davis Meredith Vukelic for Jim Fitzsimmons Prof. James Grijalva Jean Delaney for Robin Huseby Lisa Jahner Ulysses Jones Hon. William McLees Justice Mary Muehlen Maring Sinisa Milovanovic Rod Olson Tom Trenbeath
Hon. Wickham Corwin El Marie Conklin Tom Disselhorst Dr. Erich Longie Troy Morley William A. Neumann Hon. Michael T. Swallow
Mike Nason Sandi Tabor
Co-chair Foughty called the meeting to order at 10:10 a.m.
Members introduced themselves to individuals attending in place of absent members.
Co-chair Foughty asked if there were any corrections to the November 17 minutes. Tom
Trenbeath indicated that he was mistakenly listed as absent, and made a motion to approve the
minutes, as amended. Judge Anderson seconded and the amended motion was approved.
Staff summarized information from inquiries sent to Minnesota and Nebraska. These inquiries
occurred after discussions that took place during the 17 November meeting and asked about jury
pool study implementation and minority responses to race questions. Co-chair Foughty reported
that he spoke to Elizabeth Neeley, from the Nebraska Bias Task Force, about that state’s jury
study. She said that Nebraska did not encounter any negative reactions or non-response because
of race data collection. Co-chair Foughty noted that the Nebraska project did not disclose
collected information to attorneys at trial. Rod Olson reported that Minnesota has collected data
in a similar manner and has not encountered problems. Minnesota also had a very small total
proportion of individuals who chose not to share demographic information. He said, as in
Nebraska, Minnesota does not disclose data to attorneys.
Tom Trenbeath said that certification of jury questionnaires could lead to problems if individuals
have to certify to race, since people may be suspicious of how the government uses such data.
Professor Grijlava said that presenting the question after certification could help address such
suspicions. Co-chair Kapsner noted that the fact that the juror questionnaire collects no
identifying information would also help. Rod Olson said that the Minnesota form has two parts
and asks for race information in a section that appears after the signature. Members noted that
other general information could be collected through the same method if jury representation
issues arose in areas other than race.
Ulysses Jones said that, as he and Troy Morley suggested during the November 17 meeting,
minorities would probably be more likely to refrain from answering the race question. The
format of the jury questionnaire would probably not address this issue since it is rooted in a
general suspicion of the system and of how the information would be used.
Staff presented a list containing findings, proposed recommendations previously mentioned by
members, and example recommendations from other states. Co-chair Foughty said that the goal
for the meeting was action on this list of recommendations, especially with regard to
incorporating additional recommendations based on examples from other states.
Judge Anderson moved to adopt the first three proposed jury recommendations listed. These
recommendations covered (1) implementation of a long-term or permanent jury study, (2)
collection and reporting of race data for individuals selected to jury duty, and (3) data collection
for excused or deferred individuals. Justice Maring seconded this motion, but moved to amend
the motion to combine recommendations referring to collection and reporting of race data for
those excused and deferred into the second recommendation on general collection and reporting
of race data.
Professor Grijalva moved to further amend the motion to include annual rather than biennial
review as part of the combined second recommendation, and include several changes in
language. Tom Trenbeath seconded this motion to amend, which was carried unanimously.
Ulysses Jones said that this kind of data collection should be permanent, but the language
implied a limited duration. Professor Grijalva said that in order to conduct the study as noted in
the amended recommendation, it would have to be at least long-term, if not permanent. He also
suggested several changes to the language for clarity. Co-chair Kapsner moved to delete the
phrase implying a short data collection period and another referencing biennial review by the
State Court Administrator, as well as the other changes in language. Judge Anderson seconded
the motion, which was carried unanimously.
Rod Olson suggested changes to terminology referring to “jury pools,” since varying selection
methods throughout the state make that term ambiguous. Members agreed that “jury panels”
would be a better term. Members discussed additional changes to language and combining both
remaining recommendations. Tom Trenbeath moved to further amend the motion, substituting
all of language as discussed and combining the two remaining recommendations. Professor
Grijalva seconded and the amended motion carried unanimously. Co-chair Foughty called for a
vote on the original motion to adopt the proposed jury recommendations, as amended, which
Professor Grijalva suggested that, given the number of recommendations and time constraints,
discussion of further recommendations should concentrate more on the substance of
recommendations rather than format and language.
Scott Davis proposed developing an additional recommendation related to state tribal IDs. He
asked whether tribal IDs could be used for jury selection. Co-chair Kapsner recalled that an
earlier Commission discussion of a similar South Dakota proposal indicated that jury selection
from such ID cards would not work because the cards recorded inconsistent and inadequate
information. Rod Olson noted that state IDs are already a component in jury selection and said
the use of tribal IDs would require that the IDs contain a regular address and date of birth. Scott
Davis said that most tribal IDs include a date of birth, and could also be required to include an
address. Co-chairs indicated that a recommendation should be drafted to cover the tribal IDs and
that is should include language about the level of information required for use in jury selection.
Moving on to interpreter findings and recommendations, Tom Trenbeath said that incorporating
a similar recommendation to a Minnesota example that called for legislature to establish a
comprehensive statutory basis for adequate court interpretation would be a large step forward in
North Dakota. Co-chair Kapsner said that some states have established centralized interpreting
for use by many areas of the government, a good idea, but one that requires legislative initiative.
Professor Grijalva noted the similarity of a recommendation example from Nebraska, which
stated that “courts should actively seek to partner with other governmental agencies to hire full-time or to “share” language interpreters, where a need justifies such a partnership.” Tom
Trenbeath said that such a broad recommendation probably goes beyond the Commission’s
Members said that a proposed recommendation stating that “courts should improve outreach and
communication with New American communities, especially in the eastern part of the state”
would include efforts to expand the scope of ESL classes and similar efforts undertaken in
cooperation with other groups. Members also indicated that Judge Hagerty has developed an
outline detailing a four-week education program that could provide further guidance in this area.
Professor Grijalva said the UND law clinic has done some outreach in the past, and increased
cooperation from courts, as well as greater availability of language resources, would lead to
greater effectiveness. Co-chair Foughty said that members should provide relevant outlines and
other documentation to staff.
Co-chair Kapsner moved to include an example recommendation stating that “local bar
associations and the courts should engage in outreach programs with leaders of local immigrant
and culturally diverse communities to help educate their members as to the role and processes of
the court system.” Rod Olson seconded and the motion carried unanimously.
Co-chair Kapsner also moved to include an example recommendation stating that “courts should
increase the availability and access to qualified multilingual court personnel, including all
languages and dialects spoken by a significant number of citizens in each judicial district,
through expanded training, employment, and technologies” in the general recommendations.
Rod Olson seconded the motion, which carried unanimously.
Judge Anderson suggested that examples relating to translated documents could also be included
among the Commission’s recommendations. Rod Olson said that the appropriate
recommendation for the report would be to expand on existing translated forms, since a number
of translated documents already exist. He added that the computer programs used by the court to
generate certain documents could be modified to create documents in multiple languages. Judge
Anderson moved to include a recommendation stating that “the Courts should explore translating
all judicial forms and documents commonly used in court proceedings into foreign languages the
Supreme Court Administrator approves.” Judge McLees seconded and the motion was carried
Co-chair Foughty asked whether members had additional comments or recommendations in the
area of interpreters. Judge Anderson said that a recommendation to provide diversity and
cultural training for all judges and court employees could be general rather than appearing in the
interpreters section. Members agreed that this recommendation should be made general. Staff provided a short introduction to findings, recommendations, and examples in the criminal
section. Judge Anderson noted that one of the potential recommendations taken from previous
Commission discussions involved issues surrounding the revocation of driver’s licenses after
incarceration. She said that this recommendation should be included in the report though it
probably does not apply to a single racial or ethnic group. Co-chair Foughty asked whether this
recommendation should this be directed at courts and the legislature. Judge Anderson noted that
it is primarily an administrative problem.
Sinisa Milovanovic said that a recommendation to establish cultural liaisons ignored the fact that
Fargo already maintains such a liaison and Grand Forks and other areas have police officers that
serve such a function. However, there are other counties that could benefit from liaisons. Co-chair Kapsner moved to eliminate language specifying Cass County. Sinisa Milovanovic
seconded and the motion was carried unanimously.
Members discussed example recommendations regarding probation issues and the need to focus
energy toward high-risk, dangerous offenders. Co-chair Foughty discussed the HOPE Program,
offering an alternative to probation revocation that allows authorities to deal with individuals
informally. He said that the program has not worked very well, since many participants simply
do not return once a violation occurs. Judge Anderson said that such programs might be better
to explore rather than recommend directly.
Pat Bohn and Judge McLees noted the importance of emphasizing the possibility of early release
is available to defendants, if the necessary conditions are met. Members discussed the role that
violation of strict probation conditions by low-risk individuals plays in keeping them within the
system. Co-chair Foughty said that there could be more collaborative efforts between the courts,
DOCR, and other groups to produce more successful outcomes. Justice Maring said that this
subject should be presented in the Commission on Alternatives to Incarceration for discussion.
Staff asked whether example recommendations on bonds added anything useful to
recommendations that could be made for North Dakota. Members agreed that the example
recommendations did not offer anything that was not already included in the proposed
Judge Anderson said that it would not be possible to collect information on plea offers and
dispositions for all criminal defendants and juveniles by race in the manner suggested by one of
the example recommendations. Tom Trenbeath said that the information would be very fact-specific and analysis would have to control for charges and other factors, and may not be able to
provide many solid conclusions. Co-chair Kapsner recalled that the Commission heard
testimony that Native Americans tend to plead guilty disproportionately. Ulysses Jones said
that, for many minorities, there is often less incentive to go through the courts rather than
entering a guilty plea. Tom Trenbeath added that economics also plays a part in guilty pleas
Pat Bohn said that, even with difficulties, there is some merit to studying plea patterns by race.
He suggested that the Commission recommend a study of guilty or open plea dispositions across
a range of cases. Members drafted a recommendation that courts should monitor open or
binding dispositions by race. Judge Anderson moved to include the recommendation the final
report. Ulysses Jones seconded and the motion was carried unanimously.
Judge McLees and Co-chair Foughty said that the Commission should recommend objective
criteria be used to determine pre-trail release. Judge McLees noted that the Hennepin County
Pretrial Services Point Scale, appearing in a Minnesota example recommendation, could provide
Co-chair Foughty moved to include a recommendation to standardize bonds to the extent
possible to help address perceptions of racial bias between individuals living on and off
reservations, as well as a second recommendation stating that objective criteria should be used to
determine pre-trail release. Judge McLees seconded and the motion was carried unanimously.
Pat Bohn said that example recommendations regarding sentencing disparities should be
included in the final report. Judge Anderson moved to add “sentencing disparities” to a
proposed recommendation requiring “detailed long-term studies on race and the criminal justice
system.” Co-chair Kapsner seconded and the motion was carried unanimously.
Judge Anderson moved to strike a phrase reading “frequent follow-up should occur during
probation, including contact with a judge every two weeks” from one of the proposed criminal
recommendations, because such follow-up already occurs. Jean Delaney seconded and the
motion was carried unanimously.
Co-chair Foughty asked about recommendations for developing objective, evidence-based
criteria in sentencing, using tools such as the LSIR. Pat Bohn suggested a broad
recommendation calling for the use of more standardized, objective criteria to establish a starting
point for sentencing. Co-chair Kapsner and Lisa Jahner suggested another recommendation
directing courts to provide training on research-based criteria or evidence-based tools for use in
sentencing decisions. Professor Grijalva noted the role of such a recommendation in addressing
implicit bias, which could be a significant element in sentencing decisions. Juge McLees moved
to include these recommendations for objective criteria and appropriate training. Pat Bohn
seconded and the motion was carried unanimously.
Members discussed potential findings and recommendations in the area of juvenile justice. Lisa
Jahner said that there are four main counties with significant numbers of minority youth, but
proposed findings and recommendations mentioned only Burleigh and Cass as areas of future
focus. Lisa Jahner moved to add Grand Forks County and Ward County to relevant findings and
recommendations. Co-chair Kapsner seconded and the motion was carried unanimously.
Lisa Jahner moved to update a finding stating that “minority youth are less likely to have their
cases diverted” to indicate that minority youth are also more likely to have cases petitioned and
handled formally. Co-chair Kapsner seconded and the motion was carried unanimously.
Lisa Jahner said that the Commission should include a recommendation related to expanding the
minority youth liaison program to the four main counties. She proposed “the courts should
explore the potential of a minority youth liaison in countries demonstrating a need, similar to the
Native American liaison program in Burleigh County” as a possible recommendation. Co-chair
Kapsner moved to include the recommendation as stated and Tom Trenbeath seconded the
motion, which was carried unanimously.
Co-chair Kapsner moved to strike the phrase “in home and out of home placement” from a
potential recommendation regarding the development of culturally-appropriate programs for
minority youth to provide additional clarity. Judge Anderson seconded and the motion was
Co-chair Foughty said that available programs sometimes have culturally appropriate elements,
but that he did not know whether this element tends to be evidence-based. Lisa Jahner said that there is not much overlap between evidence-based programs and those
considered culturally sensitive, but that non-evidence-based programs can still be effective. Lisa
Jahner moved to change the terminology from “culturally appropriate” to “culturally sensitive”
in the recommendations. Judge Anderson seconded and the motion was carried unanimously.
Lisa Jahner also discussed developing a resource guide for minority youth and families to
provide notice of existing programming. Sinisa Milovanovic said that Lutheran Social Services
youth programs, such as Youth Court, which could be modified to provide relevant services. He
added that several resources, such as “Firstlink” in Fargo maintain databases on all services that
are available to the public, accessible through a 211 number or online. In addition, the North
Dakota Job Service Share Network maintains information and covers the entire state. Members
drafted a recommendation stating that “the State Court Administrator should develop a resource
list and make it available in clerk’s offices.”
Lisa Jahner said that the Commission should draft and include a recommendation for an
assessment of the causes of disproportionate juvenile arrest rates.
Referencing an example recommendation from Minnesota regarding ICWA training, Lisa Jahner
said that some relevant training takes place in North Dakota already. Justice Maring added that
there is an annual conference on the subject. Co-chair Kapsner moved to include an example
recommendation calling for ICWA training for judges, attorneys, social workers, guardians ad
litem, and other court personnel. Members amended the motion to include a second example
recommendation regarding efforts to recruit, train, retain, and promote minority personnel within
the juvenile justice system. Justice Maring seconded and the motion was carried unanimously.
Co-chair Foughty moved to include a recommendation directing courts to “support further
efforts” of the Department of Human Services to increase recruitment and licensing of foster
care families within minority communities. Justice Maring seconded and the motion was carried
Co-chair Foughty said that some version of an example recommendation from South Dakota,
calling for efforts by the state to work out reciprocal juvenile probation agreements with tribes,
should also be included. Pat Bohn pointed out that there are similar compacts on the adult side
of the system. Co-chair Kapsner recalled that testimony indicated a lack of adequate facilities
for supervision of youth on some reservations, which would cause difficulties. Co-chair Foughty
moved to include a version of the example recommendation in the Commission’s draft of
proposed recommendations. Judge McLees seconded and moved to amend the recommendation,
changing its language to read: “efforts should be made by the state to work out reciprocal
juvenile probation agreements with the tribes so that Native American juveniles who leave, or
return to a reservation can receive supervision.” The amended motion was carried unanimously.
Ulysses Jones moved to include a recommendation indicating that the state should continue
efforts to identify and reduce barriers to full and equal access to juvenile diversion. Judge
Anderson seconded and the motion was carried unanimously.
Co-chair Foughty said that there will be another meeting of the drafting committee and that staff
would e-mail out dates and times.