The Alaska Supreme Court Advisory Committee on Fairness and Access has released the final report from its examination of concerns involving racial and ethnic biases and the operation of the Alaska Court System. The published study, which was prepared by the Alaska Judicial Council, presents the findings and recommendations of the committee and the six subcommittees. According to the report, the committee received almost no complaints of intentional racial or cultural bias by the court system, but it learned about areas of unintentional bias, cultural misunderstandings, inadequate services and lack of accessibility. The problems of access which emerge through the report are problems of language and communication, of geography and of resources. The committee learned that many people do not understand the justice system and have difficulty using court services. Because the committee cast a wide net, some of the information obtained through its work has importance for the operation of other justice system agencies. As the report itself notes, many of the findings and recommendations have been made before. A few are being somewhat addressed by initiatives already undertaken, and some foundation for implementation of other recommendations already exists.
Work of the Committee
The committee and its subcommittees included members of the judiciary and other employees of the state court system, state employees from other agencies, tribal court judges and administrators, human resources specialists, academic researchers, criminal and civil attorneys and community activists.
The work spanned twenty months, from January 1996 through September 1997. The subcommittees investigated distinct, but intertwined, areas of concern: rural access; language and culture; jury composition; disparate confinement; the court as employer and consumer use of the court. The subcommittees heard public testimony in nine locations, examined previous studies, invited experts to speak, and conducted their own research efforts—supported by the Judicial Council, the UAA Justice Center and the Institute for Social and Economic Research (ISER). The wide-ranging effort to gather pertinent information from Alaska residents also included conducting radio call-in shows; speaking at various statewide meetings; and contacting community groups and private individuals by letter and telephone.
Findings and Recommendations
The following discussion presents the final recommendations of the committee with an overview of the findings on which they were based. (The recommendations themselves are quoted directly from the report.) The committee did not rank its recommendations, but, to the degree possible, it evaluated the financial cost and impact of each. (See Table 1.)
The report notes that twenty-nine per cent of Alaska residents lack ready access to justice system services because of geographic isolation. The problem is particularly acute in the Second and Fourth Districts. (See Figure 1.) Budgets cuts imposed on state agencies have worsened the problems of access.
To increase rural access, the committee recommended that:
- The Alaska Court System should establish its presence in rural areas not now being served and should increase its presence in underserved areas. It should encourage and fund judicial travel to local hearings, trials and sentencings, and send "circuit-riding" judges to rural areas.
- Judges should appoint local residents as special masters for appropriate proceedings. Judges should also consider appointing tribal judges and council members as marriage commissioners and guardians ad litem.
- The Alaska Court System should establish and maintain a high quality telephone system.
- The Alaska Court System should expand use of technology to improve court access for rural residents.
The report notes that the language, structure and proceedings of the court system can combine to present a barrier to understanding even for English-speaking residents and that the system can be even more incomprehensible to those from non-English language backgrounds and different cultural traditions. With reference to public education, the committee recommended:
- The Alaska Supreme Court should encourage judges to educate the public about the justice system.
- The Alaska Court System should use technology to improve public education about the justice system.
1990 U.S. Census data indicate that approximately 11 per cent of the Alaska population speaks a language other than English at home. Studies from both other states and Alaska reveal problems with the provision of due process and equal protection when parties in a court procedure are not fluent in English. The committee made a number of recommendations related to the difficulties which language group minorities face in court.
- The Alaska Court System should train judicial officers in the appointment and supervision of language interpreters in civil and criminal proceedings.
- The Alaska Court System should recruit and train local interpreters of commonly used languages.
- The Alaska Supreme Court should promulgate new court rules establishing qualifications and ethical standards for language interpreters in criminal and civil proceedings. The new rules also should govern appointment and payment of the interpreters.
- The Alaska Court System should work with justice agencies to determine the most efficient way to hire and pay for interpreters in civil and criminal proceedings.
Related to the findings and recommendations on languages was one emphasizing the need for cross-cultural training within the judicial system:
- The Alaska Court System should ensure that all employees, including judicial officers, receive cross-cultural training upon hiring and at frequent intervals thereafter. The training should include information about the ethnic and cultural groups living and working in the area served by each court location.
The findings of the subcommittees particularly looking at rural and language and cultural issues resulted in a number of recommendations involving resources which are already available or are developing.
- The Alaska Court System and individual judicial officers should actively support the use of local dispute resolution organizations to which parties voluntarily submit their disputes for resolution.
- Judicial officers should seek the assistance of local dispute resolution and tribal organizations when the organizations can provide useful information, advice, or services.
The work of several of the subcommittees resulted in the following recommendations on communication:
- The Alaska Court System should use clear, simple language in its forms and other publications.
- The Alaska Court System should translate its publications into the one or two most common languages in each venue district. The translated publications should be in written or audio form.
- The Alaska Court System should translate the audio portion of the arraignment videotape into commonly used languages in each court location.
The work of many of the subcommittees suggested that further in-depth study is needed of the ways in which the criminal justice process may be unfair to minorities. The proposed study should examine charging, dismissal, arrest and release decisions, pleas, trials, sentencing, and probation revocations. In addition, the court system and other criminal justice agencies should continue to collect data about ethnicity and the criminal justice process. The Advisory Committee on Fairness and Access made the following recommendation:
- The Alaska Supreme Court should coordinate with other agencies to ask the Alaska Legislature to fund a comprehensive study of the effects of defendants' ethnicity on their treatment by the criminal justice system.
The recommendation resulting from the work of the Disparate Confinement Subcommittee echoes similar ones made by the Alaska Sentencing Commission, the Alaska Native Commission and several bush conferences over the last twenty years:
- Judicial officers should make greater use of local sentencing alternatives. It is particularly important to rely on culturally relevant sentencing options for ethnic and racial minorities.
The findings of the Jury Composition subcommittee resulted in several important recommendations. The Alaska Court System compiles the statewide master list of prospective jurors from the Permanent Fund Dividend list—a universally inclusive source—but at present, residents of 125 Alaska communities are not called for jury service because of distance or cost constraints. This places a heavier burden in rural court locations on those who are in the pool. The 1995 statutory change in the number of peremptory challenges permitted in criminal cases has required courts to bring in larger groups for jury selection, also placing a heavier burden on those who are available. Some evidence also exists that responsiveness to the jury summons varies by ethnic group.
- The Administrative Director of the Alaska Court System and the presiding judge in each judicial district should identify ways to include as many residents as possible in the jury pool.
- The Alaska Court System should work to increase the likelihood that citizens will respond to requests for jury service, and to reduce the burdens of jury service for those who do report.
- To decrease the number of prospective jurors called but not used, the Alaska Court System should ask the Alaska Legislature to decrease the number of peremptory challenges available to the parties in criminal cases.
The subcommittee looking at the court system as employer found that, with some exceptions, disproportionately few minority group members work in the court system, particularly in higher range positions. The work of the subcommittee led to the following recommendations.
- The Alaska Court System should develop a new affirmative action plan and update it annually.
- The Alaska Court System should assess and eliminate practices that adversely affect minority job applicants.
The work of many of the subcommittees revealed that a major problem with access to the court system is a lack of understanding of its workings which is particularly complicated by language and cultural differences. It was recommended that the Alaska Court System implement a program of "cultural facilitators." Programs such as these exist in Canada and other states. The Alaska Court System has already proposed a pilot project to the Bureau of Justice Assistance for funding.
- The Alaska Court System should seek funding for a pilot program of court facilitators or "cultural navigators" to help guide members of ethnic and cultural minorities through court processes.
Much testimony expressed concerns about the way children's proceedings are handled. For example, a recent Judicial Council study found that Alaska Native children are adjudicated as in need of aid at higher rates than children of other groups. In addition, concerns were voiced about apparent lack of knowledge on the Indian Child Welfare Act (ICWA) among participants in the justice process. (To address such concerns and other aspects of Child in Need of Aid proceedings, the court system has already appointed a committee—the CINA committee.) The Advisory Committee made the following recommendations:
- The Alaska Supreme Court should ensure that the procedures used to resolve children's cases do not have an unjustifiably disparate impact on children of ethnic minorities.
- The Alaska Supreme Court should require that all judicial officers receive training in the handling of children's cases and the Indian Child Welfare Act.
Finally, the Advisory Committee on Fairness and Access, citing the model used by Oregon for the implementation phase of a similar project, asked for the establishment of an ongoing committee.
- The Alaska Supreme Court should appoint a committee to implement the recommendations of this report.
Some of the findings of the committees have direct relevance for other justice system agencies. Moreover, many of the changes recommended for the court system will affect its interaction with other agencies. For these reasons, the committee prepared a list of recommendations, many of which have been proposed before, for other agencies and institutions involved in the justice arena which reflect those offered to the court.
In addition to presenting the recommendations of the Advisory Committee with their estimated fiscal impact and transcriptions of public testimony, the report includes material on language and cultural groups, charts on distribution of state justice system resources, tables with rates of incarceration by ethnicity and crime, and a bibliography. The report is thoroughly cross-referenced.
Copies of the report discussed in this article are available from Alaska Court System. Further information about the work of the various subcommittees can be obtained from the Alaska Judicial Council.