“Diversity” in the Law: Savvy Business, Self-Motivation, or Both?

“Diversity” is a term to qualify something diverse, which the American Heritage dictionary defines as “made up of distinct characteristics, qualities, or elements.” Diversity in the work environment of law firms, agencies, in-house counsels, and non-profits usually relates to the genetic makeup of the employees’ gender, race, national origin, and sexual orientation, but for purposes of brevity and, frankly, your time, this post focuses solely on race.

In 2007, per the ABA National Lawyer Population Survey, the racial demographic of the attorney population consisted of 77.6% Caucasian/White, 3.2% African American, 3.1% Hispanic and even lower numbers for the other categories of races and ethnicities. Not surprisingly, this disparity has not made much progress in the past decade which is displayed in the 2017 percentages that show attorneys consisting of 66.8% Caucasian/White, 4.1% African American, and 3.9% Hispanic. Accordingly, these statistics create more questions than answers, such as: Why is there such a low presence of minorities in the law? Is this disparity due to a systemic problem in the American education system or attributed to employers’ implicit bias? Do schools/employers care about these statistics? If not, should they?

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Bill Cosby and American Popular Culture

Bill Cosby and Keisha Knight Pullman walk together outside of the courtroom where he faced trial on charges of rape.Bill Cosby has made two distinctly different splashes in American popular culture.  He starred in “The Cosby Show” (1984-92), a sitcom that was America’s most highly rated television show for five consecutive years.  Then, his trial for sexual assault in the spring of 2017 became the most recent “trial of the century.”  Ironically, the immense success of the former prevented the latter from attracting the attention many had predicted.

As for “The Cosby Show,” it featured the Huxtables, a fictional upper middle-class African American family living in a brownstone in Brooklyn Heights.  Cliff Huxtable, played by Cosby, was a jolly obstetrician, while his wife Clair Huxtable was a successful attorney.  The Huxtables has four daughters and one son, and although each episode had its tender tensions, they always dissipated by the end of the hour.  “The Cosby Show” was about a happy, loving ideal family, and Cliff Huxtable became the nation’s fantasy father.  When TV Guide ranked the 50 greatest dads in television history, the magazine named Cliff Huxtable “The All-Time Greatest Dad.”

While the show rarely addressed race directly, it was what the show left unsaid that was important.  Cosby and the show’s producers consciously set out to “recode blackness.”  They turned stereotypes upside-down by presenting a tightly-knit African American family that was affluent, had friends and neighbors of different races, and was headed by a married couple, with each member belonging to a learned profession.  In the midst of the Reagan-Bush years, Americans took to the portrayal, and it, if only for a moment, obfuscated the nation’s shoddy racist inequality.

When twenty-five years later in time two dozen women claimed Cosby had drugged, sexually assaulted, and raped them, America was shocked.  When Cosby went on trial in the spring of 2017 for sexually assaulting Andrea Constand, many thought the public would be obsessed with the proceedings.  Coverage of the trial seemed likely to equal that for celebrities such as O.J. Simpson in 1994 and Michael Jackson in 2005.  Trials of the rich and famous, after all, have been pop cultural delights since the days of the penny dailies in the early nineteenth century.

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Race and Risk Assessment

Risk-assessment has become all the rage in American criminal justice. In jurisdictions across the country, criminal-justice officials are utilizing increasingly sophisticated risk-assessment tools, which can be used to predict a given offender’s likelihood to reoffend based on his criminal history and a number of other variables. These predictive evaluations can be brought to bear at several important decisional points in the criminal process: pretrial release, diversion into treatment, sentencing, and others.

Although risk assessment has been widely applauded for its potential to support increased efficiency in the use of scarce criminal-justice resources, a recurring criticism has been that leading risk-assessment tools have built-in racial biases. A particular concern has been the heavy reliance on criminal history; to the extent that criminal history reflects biased actions by police or others in the past, then predictions based on that history may tend to overestimate the relative risk posed by minority defendants. Thus, for instance, a black defendant and a white defendant whose actual risk levels are identical could potentially receive quite different risk scores, leading to quite different bail or sentencing decisions.

Such concerns find some support in the empirical research.

A new study, however, reaches more reassuring conclusions, at least with respect to one risk-assessment tool used in federal court. 

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