Commission to Study Racial and Ethnic Bias in the Courts
May 20, 2011
Bismarck, North Dakota
10:00 a.m. Call to Order
Hon Donovan Foughty, co-chair
Hon. Sonna Anderson Charles Placek for Leann Bertsch Hon. Wickham Corwin Scott Davis Meredith Vukelec for Jim Fitzsimmons
Professor Jim Grijalva Jean Delaney for Robin Huseby
Ulysses Jones Hon. Mary Marring Hon. William McLees
Troy Morley William A. Neumann Rodney Olson Tom Trenbeath
Justice Carol Ronning Kapsner, co-chair Griselt Coral Andrade El Marie Conklin Tom Disselhorst Lisa Jahner Dr. Erich Longie Sinisa Milovanovic Mike Nason Hon. Michael T. Swallow Sandi Tabor
Guest Samantha Miller
Co-chair Foughty called the meeting to order at 10:00 a.m.
Approval of January 20 Minutes Judge Foughty noted that during the January 20th meeting he said that there was a lack of Native
American issues with regard to the National Consortium, but he corrected this statement, saying
he misspoke. There are actually some Native American issues represented in the Consortium
from states such as New Mexico. Tom Trenbeath made a motion to approve the January
20th minutes. Rod Olson seconded and the motion was unanimously approved.
Report on National Consortium Judge Foughty and Staff reported on the Annual Meeting for the National ConsortiumonRacial
and Ethnic Fairness in the Courts, saying that much of the information presented was as
expected, but some presentations on implicit bias and drug courts provided information not
previously covered by the Commission, or provided more detail. Jury and interpreter
information was close to what the Commission has already examined. Unconscious Bias Judge Foughty said that the final report should contain information on unconscious bias since it
appears to be central to the Commission’s study, especially as it relates to judges. Tom
Trenbeath added that such bias would also be an issue affecting prosecutors, since they are
responsible for deciding which cases will move foreword. Professor Grijalva said including
unconscious bias research provides context and an independent framework and should be
covered in the main report. He added that many individuals coming from different perspectives
do not assume unconscious bias to be significant, and hearing about its scientific basis would be
important for addressing it.
Judge Foughty agreed that unconscious bias could be a problem for prosecutors.
Recommendations regarding unconscious bias could be basic, suggesting education to
prosecutors and clerks, as well as judges. He added that even going through any of the courses
designed to address implicit bias is eye opening.
Drug Courts Staff explained key points from a presentation on drug courts given by Douglas Marlowe at the
National Consortium meeting. Marlowe stressed that if drug court efforts are undertaken only
half-way, for instance, by providing contact with judges on less than a bi-weekly basis, the
research shows that not only are drug courts and related treatments ineffective, they actually
cause increases in the kinds of offenses they are supposed to curb. Judge Anderson said that
North Dakota programs require weekly meetings with Judges, so meet this particular criterion.
Another presentation element was the notion of deceptive risk factors. Research supports the
conclusion that individuals that may initially appear to be the “hardest cases,” those least likely
to benefit from any kind of treatment, are usually those that benefit most from alternative
programs. Related to this problem is that the most effective treatments are also some of the least
used; courts often lack the ability to provide them, either for financial or availability reasons.
Cognitive behavioral therapy was a particular example of one of these treatments, having a 90%
success rate, but only used in 5% of cases.
Judge Foughty said that data exists to support certain models and states should try to be as
consistent as possible with those models. Justice Maring said that ND juvenile drug courts are
set up according to best practices that are standard throughout the nation, and reports are
available for the juvenile drug courts. Chuck Placek added that, according to Corrections data
already provided to the Commission, minorities are under-represented in drug courts and appear
to be falling out in the initial selection process. Minorities seem to be removing themselves to
the ‘traditional’ system at this stage. Members added that there may be a need for education of
defense lawyers and those in indigent defense, to encourage drug court as an option for those
they represent. Judge Foughty added that Dr. Marlowe discussed expansion of eligibility criteria
for drug courts. Individuals may be cut out of drug courts even if their primary issue was the
drug problem and violence was the outcome, but the research would indicate that may not be the
best course of action. He added that this is an area of consideration for the Commission. The
Commission noted that Dr. Marlowe will be in North Dakota for a regional conference and may
be able to speak to some of these topics.
Staff said that some programs are designed to be culturally specific. Scientific data supports
these kinds of programs, though North Dakota may not have resources to create and maintain
them. Most programs stress family participation is another element that is a primary factor in
successful completion of drug courts. Staff said that this would be an issue to bring up in the
reports, perhaps related to culturally specific programs. Scott Davis said that the Native
American view would be that there should be a part in the development of the child for the
Justice Maring said that drug courts utilize some services from private vendors but most go
through Juvenile Services, which provides evidence-based treatment. She said that treatments
such as multi-systemic therapy cannot be used extensively because of cost, adding that there are
differences of opinion, even nationally, on what kind of therapy that should be used with
juveniles. Chuck Placek said that on the adult side, there is recognition that pre-sentence
offenders tend to ‘treatment shop’ based on common knowledge of circumstances and
tendencies within programs. He said that some jurisdictions only recognize certain providers for
court ordered treatment and provide a list.
Judge Corwin said that Native Americans tend not to get involved with lawyers, pleadguilty at
the first arraignment, and therefore probably are not informed about drug court. Courts could
create some kind of informational handout about drug courts that might be distributed at first
appearances. Judge McLees added that drug courts would need to be geographically dispersed
to be effective, since they require frequent contact with the courts. Members also recognized
that issues with drug courts should be addressed only to the extent that they are under the
Supreme Court, but that effectiveness of these programs would relate to the level of recidivism.
Jury Draft Staff presented the jury rough draft, saying that there were several sections in which he ran into
questions while producing it. First, data from the jury pool survey can actually support a claim
of under-representation in Burleigh County. Previous meeting discussions decided that this data
would be excluded, but these were held before examination of data at the county level. Burleigh
County numbers appear sufficient to show under representation at the 90% confidence level. No
solid conclusions are possible because of sample difficulties and since the numbers are from a
single county. Rod Olson agreed that no returns and no follow up on non-returns means the data is problematic.
He added that North Dakota is one of the few states that lacks systematic follow-up on non-returns from the potential pool. Most states account for all jury questionnaires that are
distributed. Staff asked if the numbers are, nevertheless, worth including with this full
explanation, to show difficulties and recommend changes in data tracking, follow up for non-returns, and implementation of a similar, longer survey project aimed at gathering accurate
numbers. Members agreed that the data should be included for this purpose.
Staff also said that, after asking for non-response rates from a longer period of time than initially
provided to the Commission, he was able to get some numbers of non-returns by county over a 3
year period. Those counties containing or bordering a reservation made up the vast majority of
those showing consistently high non-returns. Judge Foughty said that one issue with regard to
juries is that there is no enforcement mechanism for courts when someone does not appear.
Judge Anderson said that judges can issue orders to show cause, but enforcement is an issue on
Staff said there were certain counties with consistently high numbers for undeliverable
summonses. Rod Olson pointed out that the two-year refreshing period complicates summonses,
generating more undeliverable addresses near the end of the period than at the beginning because
of out of date information. Members agreed to consider a recommendation that would allow
refreshing every year. Staff asked if the “National Change of Address System” could be used to
help relieve the problem. Rod Olson answered that the system would not capture individuals
whodo not contact the post office for change of address, and would not help if the individuals
move out of the county and are no longer part of the eligible jury population. Scott Davis said
that the South Dakota legislature passed a law to allow use of Tribal IDs throughout the state for
activities like cashing checks, voting, and jury selection. He said that the Commission should
consider getting a sponsor for this kind of a bill in North Dakota.
Interpreters Draft Staff presented the rough draft of the section on Interpreters, identifying the main problem with
this area as the lack of original data, though the Commission received testimony from meetings
held in Fargo and from write-in experiences. He said a lot of secondary information on
interpretation exists. He added that though Commission data on interpreters is experiential,
other reports share this characteristic. Prof. Grijalva said that the relative absence of information
on interpreters is itself a point of data. Judge Foughty added that the since report is not just for
the Supreme Court, butalso for the legislators and public, it is important that they know the
situation with interpreters and background research.
Rod Olson said that North Dakota had joined the National Consortium of Interpreters during the
few weeks previous and through that group would be able to access current discussions on
interpreters more easily. Staff said that consortium speakers, even from diverse and large
population states, repeatedly noted the difficulty in finding translators qualified for court
interpreting. Rod Olson continued, saying Minnesota has a very good program that generates
very good interpreters, since they have to be certified. Judge Foughty pointed out that such a
program is very expensive. Members said this expense is exacerbated by North Dakota’s
sporadic use of interpreters. Members agreed that the Commission should recommend training
on how to accommodate interpreters in court rooms.
Professor Grijalva asked whether studies existed on the intersection between translation and
unconscious bias. Staff replied he was not aware of any. Professor Grijalva said that such an
intersection would be an obvious area of study, with likelihood of a natural inclination to trust
the English speaker. Judge Corwin added that another problem is interpreters lacking legal
background. Ulysses Jones asked whether there has ever been a situation requiring interpreting
for jurors in North Dakota. Members could not think of an example of such an instance, saying
the standard requires that the jury has to speak English with a ‘reasonable accommodation.’
Report Judge Foughty asked whether Staff could bring other drafts of report sections before the
Commission for the next meeting. Staff said that the he could revise the two existing sections
and do a draft for an overall introduction. Civil and criminal would be more difficult, since the
area has many potential discussion areas, is complicated, and often has exceptions and details
that apply in only particular instances. Little original information on civil justice exists beyond
what was collected at the time of the interim report. Members asked regarding the format of the
final report and the timeline for completion. Staff said that the Commission had agreed to try to
follow a similar format to the interim in the overall construction of the final. The final end date
for this report will be March, 2012.
Members mentioned sections on employment and the North Dakota legal community. Judge
Foughty said that Native American attorneys in North Dakota are either in tribal government,
running tribal businesses, tribal legal counsel or going out of state. Scott Davis said that the
Commission should recommend a strategy for recruiting and retaining Native Americans,
creating internships and other opportunities in the profession.
Race and Gender Judge Foughty asked how the issue of race and gender should be addressed in the report, or
whether it can be addressed at all with the data available. Members agreed that there is limited
information to draw on, and so the subject does constitute a new study area. Ulysses Jones asked
whether there was a correlation between being Native American woman and abuse and in terms
of handling in the court system and if there was perceived bias in that area. Staff said that the
Commission had little perception information on this subject, but agreed that this theme might be
tied into various points of the final report rather than its own section as in the Pennsylvania
Research and Meetings Samantha Miller shared an idea for the Commission to sponsor a table at SBAND for the
attorney survey. She suggested that the Commission could get on a list so attorneys would have
to complete the survey to be eligible for prize drawings. Members decided that the Commission
could provide the online survey on laptops at the booth, and Staff was directed to facilitate this
through Bill Neumann.
Staff said he was working with Tom Disselhorst and Jim Fitzsimmons to get questions and
attorneys together for the focus group test in Bismarck, and that he would create a second draft
of research questions and send them to the research committee for comments. He added that the
user survey test of 40 individuals had been completed and he had asked for a larger sample,
which was in process. The data from the test was provided to the UND Bureau of Government
Affairs so it could begin analysis.
Having no further business, the meeting was called to a close at 1:00 p.m.