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State Courts’ Lack of Color is Not Black and White

State supreme courts are painfully nondiverse and this is causing lopsided decisions in Mississippi and across the nation.


Legal watchdog group the Brennan Center for Justice reports people of color make up more than 40 percent of the U.S. population, but state supreme courts are failing to reflect the diversity of the communities they serve. Eighteen states have no justice who identifies as a person of color, including 12 states where nonwhites comprise 20 percent or more of the population. Twenty-five states have no Black justices, while 39 states—including DC—have no Latino justices. Additionally, 42 states have no Asian justices, and the vast majority of states (46) have no Native American justices.


U.S. Rep Sen. Steve Daines, R-MT, punctuated the nation’s poor record of Native American justices this week by blocking the appointment of Montana’s first Native American federal district court judicial appointee Danna Jackson. Jackson is a member of the Confederated Salish and Kootenai Tribes.


Louisiana’s current supreme court make-up is 14% Black, in a state that is more than 30% African American.

All in all, just 20% of state supreme court seats, including DC, are held by people of color.


One of the biggest offenders was the state of Alabama, which had no Black justices on the state supreme court despite the state being more than 12% Black.


This is a problem considering how deeply ideology and life experiences shape judicial outcomes. One study discovered Black judges “tend to issue shorter criminal sentences compared to their non-Black peers,” possibly due to their less sheltered life experiences. Many nonwhite justices didn’t have a cozy cushion of family wealth to protect them from the bias of multiple U.S. systems, including law enforcement, the judicial system, the banking system and healthcare. Awareness of longstanding U.S. institutional bias in the court system can be helpful in moderating the damage to Black defendants who receive significantly longer prison sentences than white offenders with comparable offenses. The U.S. Sentencing Commission reported last year, for example, that Black men received sentences 13.4% longer than white males, and Hispanic males received sentences 11.2% longer than white men.


Some state court bench seats are appointed positions nominated by white politicians who occupy the brunt of statewide offices while others are elected positions. Studies suggest white voters penalize Black candidates based on skin tone and ethnicity, which makes fairly apportioned judicial districts pivotal to judicial variety. The Lawyers’ Committee for Civil Rights Under Law filed a 2019 suit on behalf of the Louisiana NAACP to create a second majority-Black judicial district under Section 2 of the Voting Rights Act. Louisiana legislators’ rare follow-up decision to create a new Black-majority district in accord with the Voting Rights Act means a second Black majority district will soon compliment a similar district in New Orleans.


Louisiana’s current supreme court make-up is 14% Black, in a state that is more than 30% African American.


“The map has not been redrawn since the 1990s, and it’s about time the people of Baton Rouge have a fair say as to who sits on the highest court of their state,” said Lawyers’ Committee for Civil Rights Under Law Senior Counsel Jennifer Nwachukwu.


Race is not the only disparity facing state supreme courts, however. The Brennan Center also discovered 38% of sitting justices are former prosecutors, while only 9% are former public defenders. This is a worrying statistic because research indicates judges with experience as public defenders are less likely to incarcerate defendants, and they issue comparatively less-severe sentences. The real world consequences of this disparity creates a lopsided “prosecute at all costs” mentality that can deliver opinions that go so far as to undermine the U.S. Constitution, as BGX discovered last month.


The prosecutor-heavy Mississippi Supreme court recently punted on a decision that denies 6th Amendment protections to defendants represented by public defenders’ offices. In its terse dismissal, majority members let stand a lower court decision finding that public defense attorneys could represent co-defendants against one another in violation of 6th Amendment rights guaranteeing defendants the “right to effective assistance of counsel.” The hasty rejection also let stand Forrest County Public Defenders’ violation of Mississippi Rules of Professional Conduct, which restricts lawyers from the same firm “knowingly represent(ing) a client when any one of them practicing alone would be prohibited from doing so …”


Justice Jim Kitchens, one of the few judges on the Mississippi Supreme Court with defense attorney credentials, issued a dissent that was 14 times longer than the court’s 93-word punt.


“We should not continue to leave the Mississippi bench and bar in the dark on how to navigate the scenario presented in this case,” wrote Kitchens. “This direct appeal is the right opportunity for the full Court to announce the approach our jurisdiction will take so that attorneys and judges can commence criminal trials with full confidence that all necessary conflict inquires have been conducted, resolved, and preserved in the record.” 


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