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A Courts-Focused Research Agenda for the Department of Justice

Recommendations for the Justice Department research agenda to shed more light on how to improve our nation’s vast system of local, state, and federal courts.

Introduction

Millions of individuals interact with the U.S. criminal and civil legal system every year. Many of them look to the courts to defend their rights and ensure fair outcomes — and all too often, courts are falling short.

As a candidate, President Biden committed to combatting mass incarceration, ending the criminalization of poverty, rooting out racial disparities, and refocusing our criminal and civil legal systems on the key principles of equality, equity, and justice. State and federal courts are critical to achieving these goals, but there is much that we don’t know about how they currently function and where reform is most acutely needed.

In order for the Department of Justice (DOJ) to effectively support states, local jurisdictions, tribal governments, territories, and the federal government in refashioning our courts into more just institutions, research and data are urgently required.

There must be an understanding not only of who is entering the court system, but why they are brought into it, and what their experiences illustrate about our vast system of local, state, and federal courts. For example, the Biden administration has emphasized its intention to end the practice of incarcerating people for their inability to pay court debt, yet we still know very little about how these and other predatory court practices function across the country. The Covid-19 pandemic prompted an unprecedented experiment with remote court proceedings in jurisdictions across the country, but we still know very little about how remote court impacts access to justice and the fairness of proceedings.

President Biden has also emphasized the importance of racial, ethnic, gender, and professional diversity on the bench — including nominating judges who bring diversity to the bench. But while the judiciary publishes diversity data about Article III judges, we lack basic information about the demographics or professional experience of many judges in state and Article I federal courts. These are just a few of the data and research gaps that make our courts problematically opaque.

Although just scratching the surface, we offer some recommendations for the Office of Justice Programs (OJP) and National Institute of Justice (NIJ) to collect additional data and perform research to better understand how our courts do or don’t work for millions of Americans, as well as setting forth a research agenda that could shed more light on how to improve our nation’s vast system of local, state, and federal courts.

Fees and Fines

Many states and local governments rely on fees and fines to fund their court systems and basic government operations. Fees and fines are an inefficient source of government revenue, yet the high costs of collection and enforcement are excluded from most analyses. What this means is that actual revenues from fees and fines are far lower than what legislators expect. Court imposed fees and fines often translate into debt that millions of Americans cannot afford to pay, frequently paving a new pathway to incarceration. Because of over-policing in communities of color and the demographics of poverty in the U.S., the burden of fees and fines falls largely on people of color and the poor. footnote1_wunocc5 1 Matthew Menendez et al., The Steep Costs of Fines and Fees, Brennan Center for Justice, 2019, 13, https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines.

On the campaign trail, then-candidate President Biden recognized that fines and fees often serve to criminalize poverty, and he committed to using “the grantmaking power of the federal government to incentivize the end of policies that incarcerate people for failing to pay fines and fees,” including policies revoking driver’s licenses. footnote2_b6s0y5m 2 Biden’s campaign website noted that he would target policies to revoke driver’s licenses for unpaid parking and speeding tickets, but also added that “these license-related reforms will not apply to licenses revoked for driving while intoxicated, reckless driving, or other serious driving violations.” “The Biden Plan for Strengthening America’s Commitment to Justice,” JoeBiden.com, accessed February 2, 2021, https://joebiden.com/Justice/.  Resources devoted to collecting and enforcing fees and fines could be better spent on efforts that don’t unduly burden low-income individuals and their families and actually improve public safety. footnote3_db7wr4l 3 Menendez, The Steep Costs of Fines and Fees, 9­–10.

Research opportunities

  • Evaluate jurisdictions that permit judges to waive or reduce fines and fees based on a defendant’s ability to pay: Very few courts assess a person’s ability to pay before they impose fines and fees or engage in onerous collection practices. Even courts that do perform this assessment seldom do so holistically. Many states allow judges to waive or reduce fines and fees if the judge determines the person lacks the ability to pay the full amount, yet how judges exercise this discretion has never been studied. The Office of Justice Programs (OJP) should select several jurisdictions in which to evaluate judicial decision-making, including
    1. the percentage of cases in which judges waive or reduce fines and fees;
    2. the range of reductions and factors included in ability-to-pay decisions; and
    3. the collection rates of people whose fines and fees have been reduced, as compared to those assessed the initial standard amount.
  • Fund and evaluate ability-to-pay pilot sites: Though there are limited evaluations of courts that conduct ability-to-pay determinations, in the year following the passage of a 2017 Texas law requiring judges to conduct ability-to-pay hearings, the state saw a 37.5 percent decline in arrest warrants and 170,000 fewer individuals incarcerated for nonpayment of fines and fees. footnote4_55nzck9 4 Fines and Fees Justice Center, “Texas SB 1913,” June 20, 2017, https://finesandfeesjusticecenter.org/articles/texas-sb-1913-fines-fees/. The Bureau of Justice Assistance (BJA) should fund 5–10 sites across the country to pilot and evaluate ability-to-pay assessments conducted before fines and fees are imposed. There are numerous ability-to-pay rubrics that have been developed and are in use, including the Fines and Fees Justice Center’s Policy Guidance on Ability-to-Pay, Payment Plans, and Community Service. footnote5_l155mdj 5 See Fines and Fees Justice Center, First Steps Toward More Equitable Fines and Fees Practices: Policy Guidance on Ability-to-Pay Assessments, Payment Plans, and Community Service, 2020, https://finesandfeesjusticecenter.org/2020/11/17/new-ffjc-publication-policy-guidance-on-ability-to-pay-assessments-payment-plans-and-community-service/.  The pilots should all adopt and apply the same rubric, which would document
    1. the extent to which courts reduce fines and fees, and whether the amount is influenced by an in-person court appearance;
    2. the costs associated with conducting ability-to-pay assessments; and
    3. the challenges associated with implementation of ability-to-pay assessments, as well as the changes in defendants’ lives due to reduced fines and fees.
  • Study fees levied in all 50 states: DOJ should fund studies that investigate common fees imposed across the country, such as probation, electronic monitoring, warrant, booking, and court processing fees. This research should document
    1. the states in which various fees are assessed, the amount of the fees, and the changes to fee amounts over time; and
    2. the agencies and programs funded by these fees and the actual revenue they receive.
  • License suspensions for nonpayment of fees and fines: One of the most common sanctions that states impose on someone who has not paid fees and fines in a timely manner is suspending their driver’s license. In doing so, states prevent the person from commuting to work or finding a job, perpetuating a cycle of debt and continued involvement with the criminal justice system. Recognizing this harm, about a dozen states recently stopped suspending licenses for failure to pay fees and fines. NIJ should fund studies on the impact of this legislation, including
    1. whether collections of fees and fines increased or decreased compared to states that still suspend licenses for failure to pay; and
    2. how license reinstatement impacted people’s lives, such as their ability to obtain or maintain a job after their license was reinstated and whether their wages and hours increased after reinstatement.
  • Costs of assessing and collecting court imposed fees and fines: Jurisdictions justify the imposition and collection of court imposed fees and fines with the revenue generated from these programs. But those figures fail to consider not only the burden imposed on the people who have been sanctioned but also the administrative costs associated with the collection program. While counties and states can readily point to the amount of funds collected from fees and fines, they do not systematically collect data on the hidden costs of assessing and enforcing payments, which offset revenue generation. footnote6_dq9gd9h 6 Michael F. Crowley, Matthew J. Menendez, and Lauren-Brooke Eisen, “If We Only Knew the Cost: Scratching the Surface on How Much it Costs to Assess and Collect Court Imposed Criminal Fees and Fines,” UCLA Criminal Justice Law Review 172 (2020), https://escholarship.org/uc/item/19p8b9r6.  To determine the full cost of court imposed criminal fee and fine enforcement to taxpayers, NIJ should solicit research on
    1. the types of compliance activities for fees and fines that involve law enforcement agencies and probation departments, as well as enforcement policies;
    2. personnel costs for public officials (e.g., judges, prosecutors, police, public defenders, and community corrections staff) due to court appearances related to criminal fees and fines proceedings; and
    3. cost of contracts with private collection agencies, if applicable, as well as the costs of these agencies imposed on the people sanctioned.

Municipal Courts

Municipal courts are local courts with jurisdiction over misdemeanors, traffic violations, and sometimes small civil claims. footnote7_ttjkpe4 7 These courts are also known as “city,” “police,” “summary,” “town,” or “justice” courts.  They are run by cities and towns, not state judiciaries, and vary widely from state to state and sometimes even city to city. The innerworkings of these courts are not well known, with proceedings that are often informal, summary, and lacking basic due process protections. As detailed in Professor Alexandra Natapoff’s recent Harvard Law Review article, there are approximately 7,500 such courts across 30 states, footnote8_39natxc 8 Alexandra Natapoff, “Criminal Municipal Courts,” Harvard Law Review 134 (2021): 977, https://harvardlawreview.org/2021/01/criminal-municipal-courts/.  handling as many as 3.5 million criminal cases each year. footnote9_z9aoggd 9 Natapoff, “Criminal Municipal Courts,” 977.  Municipalities also rely heavily upon these courts to raise revenue through fines and fees, collecting as much as $2 billion annually. footnote10_bg3po66 10 Natapoff, “Criminal Municipal Courts,” 983.  Yet there is no entity that collects comprehensive data about them.

In recent years, municipal courts have been increasingly scrutinized for dehumanizing and unconstitutional practices that criminalize race and poverty. footnote11_t1hr04m 11 Natapoff, “Criminal Municipal Courts,” 985­­–88.  The most notable example is Ferguson, Missouri, where an investigation by the U.S. Department of Justice, following the murder of Michael Brown by police officer Darren Wilson in 2014, found that the city’s police and municipal courts treated Black residents “less as constituents to be protected than as potential offenders and sources of revenue[.]” footnote12_h1zahrh 12 Civil Rights Division, U.S. Department of Justice, Investigation of the Ferguson Police Department, 2015, 2, https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police _department_report.pdf. A 2017 report by the U.S. Commission on Civil Rights observed that “[m]unicipalities that rely heavily on revenue from fines and fees have a higher than average percentage of [Black] and Latino populations relative to the demographics of the median municipality,” and that “[m]unicipalities target poor citizens and communities of color for fines and fees.” See U.S. Commission on Civil Rights, Targeted Fines and Fees Against Communities of Color: Civil Rights & Constitutional Implications, 2017, 3–4, https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017.pdf. Another study found that “[t]he best indicator that a government will levy an excessive amount of fines is if its citizens are Black.” Dan Kopf, “The Fining of Black America,” Priceonomics, June 24, 2016, https://priceonomics.com/the-fining-of-black-america/.

Research opportunities

  • Data collection: The Bureau of Justice Statistics (BJS) should collect data about municipal courts’ caseloads, including the number and types of cases, processing time, representation by counsel, and outcomes.
  • The effect of judicial selection on fees and fines levied: In some states, municipal court judges are elected by voters. footnote13_n9jlkpa 13 “Methods of Judicial Selection: Limited Jurisdiction Courts,” National Center for State Courts, accessed April 8, 2021, http://www.judicialselection.us/judicial_selection/methods/limited_jurisdiction_courts.cfm.  In other states, they are appointed by local officials, such as the mayor or city council. footnote14_azsq3l9 14 “Methods of Judicial Selection: Limited Jurisdiction Courts.”  In some cases, local jurisdictions have discretion over their selection methods for municipal court judges. footnote15_iog3ich 15 “Methods of Judicial Selection: Limited Jurisdiction Courts.”  DOJ should study the relationship between method of judicial selection and the fines and fees levied by municipal courts.
  • Characteristics of municipal court judges: Most states do not require municipal court judges to have law degrees. footnote16_tetu739 16 Natapoff, “Criminal Municipal Courts,” 979.  Education and licensing requirements can differ from one city to another. footnote17_3p7771q 17 Natapoff, “Criminal Municipal Courts,” 979.  Information should be collected on descriptive characteristics of municipal court judges, including demographic information, whether the judge is a lawyer, and judges’ professional backgrounds.
  • Court compliance tools: Courts traditionally rely on the issuance of bench warrants to force compliance when individuals fail to appear, fail to pay fees and fines, and fail in other ways to meet obligations ordered by courts. Yet all too often, bench warrants are a quick path to criminal justice involvement for people in poverty, who may not be able to easily make alternative arrangements for work, childcare, and other family obligations. At the same time, little research has been done on the availability and use of alternative court compliance tools, such as automated telephone reminders for court appearances, easy access to alternative dispute mechanisms for tickets, summonses that do not require a court appearance, and alternatives to payment without going before a judge to obtain a finding of inability to pay.
  • Identify/quantify where court revenue goes: Although “[m]unicipal courts are the primary institution through which cities collect criminal and traffic fines and fees,” footnote18_uoo9q97 18 Natapoff, “Criminal Municipal Courts,” 982–83.  Professor Natapoff has documented substantial challenges in identifying how much these courts collect each year. footnote19_yg4p0x7 19 The U.S. Census Bureau also collects “fines and forfeits” data from municipalities; however, that data includes revenue collected by states and counties, not just municipalities. Natapoff, “Criminal Municipal Courts,” 982–83.  NIJ should fund research that investigates the type of fees and fines levied, the amount assessed, the amount collected, and the destination of court revenue.

Diversion

Diversion has been a long-standing tool for prosecutors and the courts to limit unnecessary criminal justice involvement for individuals who are charged with crimes as a result of underlying problems — often relating to mental health and substance abuse issues. footnote20_dc3kyt4 20 Center for Health & Justice at TASC, No Entry: A National Survey of Criminal Justice Diversion Programs and Initiatives, 2013, 1, 11, https://www.centerforhealthandjustice.org/tascblog/Images/documents/Publications/CHJ%20Diversion %20Report_web.pdf.  Through diversion, judges and prosecutors can place individuals, most often those charged with nonviolent offenses, in programming and services with the long-term goal of breaking the cycle of criminalization and addressing the root problem of minor crimes.

As a part of his platform to end the misdirected “war on drugs,” President Biden promised to require federal courts to divert all those incarcerated for drug use alone to drug courts and treatment, and incentivize states to do the same. footnote21_ipmmlkf 21 “The Biden Plan for Strengthening America’s Commitment to Justice,” JoeBiden.com, accessed February 2, 2021, https://joebiden.com/Justice/.  He assured that he would expand funding for drug court at the federal, state, and local level, as well as other alternatives to detention courts, such as veterans and youthful offender courts. footnote22_4xxr7on 22 “The Biden Plan for Strengthening America’s Commitment to Justice.” With greater information on the prevalence, cost, and types of diversion programs, states and localities can implement policies that maximize the positive effects of this practice.

Research Opportunities

  • Cost of Diversion: In recognition of the counterproductive and harmful impacts of criminal justice involvement, localities across the country are increasingly diverting individuals away from the criminal legal system and towards appropriate services. footnote23_kf76r47 23 “Diversion and Alternatives to Incarceration,” Fair and Just Prosecution, accessed February 3, 2021, https://fairandjustprosecution.org/issues/diversion-and-alternatives-to-incarceration/.  Not only has diversion produced cost savings, but it has also shown to reduce recidivism in the long term. footnote24_p5o24dw 24 No Entry: A National Survey, 17.  However, many individuals are locked out of diversion programs due to the inability to pay for program fees. footnote25_y3m0w18 25 American Bar Association Working Group on Building Public Trust in the American Justice System, Privatization of Services in the Criminal Justice System, 2020, 11, https://www.americanbar.org/content/dam/aba/administrative/legal_aid_ indigent_defendants/ls-sclaid-def-aba-privatizaton-report-final-june-2020.pdf.  Any evaluation of diversion programs across the country should consider
    1. the number of individuals locked out of diversion programs (either private or publicly run) due to an inability to pay, as well as demographic information about such individuals;
    2. the completion rates for free diversion programs versus those that charge participants;
    3. the racial and ethnic demographics of individuals in diversion programming;
    4. what sources of funding communities draw on for diversion-related mental health, substance use disorder, and other services; and
    5. how to best organize the provision of diversion-related services to ensure optimal cost-effectiveness with outcomes that minimize subsequent contact with the criminal justice system.
  • Gender and Diversion: While some diversion programs focus on mothers and primary caretakes of young children, footnote26_wbf2azd 26 See Rebecca Beitsch, “How Diverting Mothers from Prison May Break the Cycle of Incarceration,” PBS NewsHour, September 14, 2017, https://www.pbs.org/newshour/nation/diverting-mothers-prison-may-break-cycle-incarceration. diversion programs are generally designed with men in mind, consistent with the false assumption that criminal legal problems primarily apply to men. footnote27_t45s7pf 27 See Elizabeth Swavola et al., Overlooked: Women and Jails in an Era of Reform, Vera Institute of Justice, 2016, 29–31, https://www.vera.org/publications/overlooked-women-and-jails-report.  The Biden campaign specifically noted the importance of diversion initiatives aimed at women, mothers, and parents generally, promising to “review the efficacy of programs that allow nonviolent offenders who are primary care providers for their children to serve their sentences through in-home monitoring.” footnote28_rc0telg 28 “The Biden Plan for Strengthening America’s Commitment to Justice.”  More needs to be known about the relationship between gender and diversion programs, including
    1. the gender breakdowns of formal diversion programs and informal diversion strategies, and the particular impacts of these alternatives on women;
    2. the success of existing programs in supporting justice-involved women in being primary caretakers, as well as the ways that gender-responsive programming could be designed for non-mothers; and
    3. the racial disparities that exist in the design, implementation, and success of diversion programming aimed at women.

Remote Technology

Since the beginning of the Covid-19 pandemic, courts across the country have worked rapidly to adjust their policies to continue essential operations. Many courts have turned to remote proceedings for a wide array of civil and criminal matters, including eviction proceedings, custody hearings, arraignments, probation hearings, and bench and even jury trials. footnote29_rle8r73 29 Brennan Center for Justice, “Courts’ Responses to the Covid-19 Crisis,” last updated September 10, 2020, https://www.brennancenter.org/our-work/research-reports/courts-responses-covid-19-crisis.  While the limited use of remote technology has been part of the legal landscape for decades, the scope and scale of its use since March 2020 is unprecedented. Many court leaders have suggested that at least some expansion of remote court should be made permanent. footnote30_st899wq 30 Allie Reed and Madison Alder, “Zoom Courts Will Stick Around as Virus Forces Seismic Change,” Bloomberg Law, July 30, 2020, https://news.bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seismic-change.

Research opportunities

  • Data collection: There is a dearth of research on the impact of remote court proceedings on fairness and access to justice. A review of the existing literature suggests reasons for caution. footnote31_mt1h6g2 31 Alicia Bannon and Janna Adelstein, The Impact of Video Proceedings on Fairness and Access to Justice in Court, Brennan Center for Justice, 2020, 2, https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-and-access-justice-court.  For instance, a study of criminal bail hearings found that defendants whose hearings were conducted over video had substantially higher bond amounts set than their in-person counterparts. footnote32_8qfn0yo 32 Shari Seidman Diamond et al., “Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail Decisions,” Journal of Criminal Law and Criminology 100 (2010): 893, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article= 7365&context=jclc.  Another study of immigration courts found that detained individuals were more likely to be deported when their hearings occurred over video conference rather than in person. footnote33_cx1z0el 33 Ingrid V. Eagly, “Remote Adjudication in Immigration,” Northwestern University Law Review 109 (2015): 933-934, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1217&context=nulr.  BJS should collect comparative data across time, type of proceeding, and jurisdiction that records
    1. default rates, time to case resolution, outcomes, and representation by counsel in in-person and remote proceedings; and
    2. the type of technology used, the type of proceedings for which remote technology is permitted, and the number of remote proceedings by category of case for those jurisdictions in which remote technology is used.
  • User experience surveys: The experience of remote court may vary substantially depending upon, among other things, the nature of the proceeding and the ability of participants to comfortably access and use remote technology. In order to fully understand the impact of remote court, it is critical to hear from a wide array of court users. DOJ should investigate how litigants (including self-represented litigants), attorneys (including legal services attorneys and public defenders), judges, court administrators, witnesses, jurors, and other stakeholders, across a wide range of proceedings, have experienced the transition to remote court. Priority should be placed on gathering information on
    1. the remote platform and devices that were used, the technical support available, and whether there were any technological difficulties experienced due to device issues or lack of internet access;
    2. the accommodations made for individuals who lacked a device or were uncomfortable participating remotely;
    3. provisions for public access;
    4. process-related issues around accessing the proceeding remotely, introducing or viewing evidence, or sensitive information being disclosed;
    5. perceived challenges with assessing witnesses’ credibility;
    6. perceived challenges with maintaining courtroom order;
    7. mechanisms for attorney-client communication, including any issues with preserving confidentiality; and
    8. the experiences of non-English speakers, individuals with disabilities, and other court users who may require accommodations.
  • Empirical research on the impact of remote proceedings on outcomes: As courts consider a long-term expansion of the use of remote technology, it is important to understand whether and how remote court impacts outcomes. Research should address the numerous categories of civil and criminal proceedings that have been undertaken remotely, with particular attention to categories of litigants who may face unique hurdles, such as individuals who are self-represented or detained. NIJ should gather information regarding
    1. a detailed comparison of the outcomes of proceedings conducted in-person versus remotely;
    2. the treatment by judges of virtual and in-person proceedings in terms of time spent on each case and resources allocated;
    3. the impact of remote proceedings on Black, Latino, Indigenous, and other people of color compared to their white counterparts, as well as the impact on those with disabilities or people whose primary language is not English;
    4. the support provided to attorneys and pro se litigants in adapting to remote systems and technology, in addition to the efficacy and impact of remote self-represented litigant services; and
    5. the quantity and quality of attorney-client interactions in the remote environment as compared to in-person proceedings.
  • Impact of digital divide: Virtual proceedings raise equity concerns for those who do not have adequate internet access and thus face barriers to participating in court remotely. According to the Pew Research Center, there are substantial disparities in access to broadband internet and computers by income and race. footnote34_8si5nmy 34 Monica Anderson and Madhumitha Kumar, “Digital Divide Persists Even as Lower-Income Americans Make Gains in Tech Adoption,” Pew Research Center, May 7, 2019, https://www.pewresearch.org/fact-tank/2019/05/07/digital-divide-persists-even-as-lower-income-americans-make-gains-in-tech-adoption/; and Andrew Perrin and Erica Turner, “Smartphones Help Blacks, Hispanics Bridge Some — But Not All — Digital Gaps with Whites,” Pew Research Center, August 20, 2019, https://www.pewresearch.org/fact-tank/2019/08/20/smartphones-help-blacks-hispanics-bridge-some-but-not-all-digital-gaps-with-whites/  Americans who live in rural communities are also less likely to have access to broadband internet. footnote35_4cxdh86 35 Andrew Perrin, “Digital Gap Between Rural and Nonrural America Persists,” Pew Research Center, May 31, 2019, https://www.pewresearch.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonrural-america-persists/.  The same is true for people with disabilities, who may also require special technology to engage in online activities such as remote court proceedings. footnote36_hxn5eej 36 Monica Anderson and Andrew Perrin, “Disabled Americans are Less Likely to Use Technology,” Pew Research Center, April 7, 2017, https://www.pewresearch.org/fact-tank/2017/04/07/disabled-americans-are-less-likely-to-use-technology/.  NIJ should investigate these disparities, including
    1. the number of litigants and individuals called to jury duty who do not have access to adequate internet or technology to participate in virtual court;
    2. the financial hurdles to participating remotely due to limited data plans or similar constraints, as well as the technological hurdles that impact participation;
    3. the accommodations being made for those without access to adequate technology or internet; and
    4. any jurisdictional plans to increase digital accessibility during ongoing virtual sessions or after courts reopen for in-person proceedings.

Diversity on the Bench

Judicial diversity, including racial, ethnic, gender, and professional diversity, is critical for ensuring public confidence in the courts and enriching the judicial decision-making process and future development of the law. Existing research illustrates a lack of diversity on state and federal courts across the country. footnote37_4qksjeq 37 See Laila Robbins and Alicia Bannon, State Supreme Court Diversity, Brennan Center for Justice, 2019, https://www.brennancenter.org/sites/default/files/2019-08/Report_State_Supreme_Court_Diversity.pdf; Tracey E. George and Albert H. Yoon, The Gavel Gap: Who Sits in Judgment on State Courts?, American Constitution Society, 2018, https://www.acslaw.org/analysis/reports/gavel-gap/; and “Diversity of the Federal Bench: Current Statistics on the Gender and Racial Diversity of the Article III Courts,” American Constitution Society, last accessed April 8, 2021, https://www.acslaw.org/judicial-nominations/diversity-of-the-federal-bench/. For example, a 2021 study by the Brennan Center found that 22 states have an all-white state supreme court bench, including 11 states where people of color are at least 20 percent of the population. footnote38_3yzijy2 38 Alicia Bannon and Janna Adelstein, “State Supreme Court Diversity — April 2021 Update,” Brennan Center for Justice, April 19, 2021, https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-april-2021-update.

Understanding the demographic and professional composition of the bench is critical for public accountability. It can also help inform efforts to enhance judicial diversity by indicating where the judicial “pipeline” may be inaccessible. And it can be a building block for scholarship on how judges reach the bench, how litigants experience the courtroom, and how varied experiential backgrounds affect judicial decision-making.

Research opportunities

  • Data collection: There is surprisingly little publicly available information about the demographics or professional experience of judges. While the Federal Judicial Center publishes data for Article III judges, there is an absence of public information about other judges within the federal system, such as magistrate and bankruptcy judges. Publicly available data is similarly lacking for most state courts. footnote39_d9xuz95 39 Yuvraj Joshi, Diversity Counts: Why States Should Measure the Diversity of Their Judges and How They Can Do It, Lambda Legal and American Constitution Society, 2017, 10, https://www.lambdalegal.org/diversity-counts  There is also a lack of published demographic information about court staff, including law clerks. NIJ should solicit and publish demographic information and professional background for state court judges at every court level, as well as Article I federal judges and law clerks working in state and federal courts.
  • Research on pathways to the bench: One of the hurdles to achieving greater judicial diversity is a lack of understanding about pathways to the bench and the challenges faced by individuals from underrepresented backgrounds. DOJ should produce research regarding
    1. the impact of diverse membership on judicial nominating commissions or vetting committees on diversity of judicial nominees;
    2. the impact of elected as compared to appointive systems with respect to racial, ethnic, gender, and professional diversity on the bench; and
    3. the effectiveness of existing innovative recruitment and “pipeline” building programs.

Acknowledgments

The authors are grateful to Lisa Foster and Joanna Weiss, who direct the Fees and Fines Justice Center, for their feedback on this report, along with Michael Crowley, Adam Gelb, Thomas Abt, Brandon Garrett, Allison Hastings, Cameron Kimble, Taryn Merkl, Ames Grawert, Ram Subramanian, and Justin Charles for their guidance on this project.

End Notes