Under representation of racial minorities.

Introduction

Racial minorities have been discriminated against for a very long time in almost all spheres of social life. In no other profession have the racial minorities been so underrepresented. According to, US Census Bureau. (2001) racial minorities’ lawyers represent less than 7% of all lawyers in the U.S.

African Americans and the Hispanic people, the majority group amongst the minority groups in the U.S continue to be unfairly treated in the face of law and the legal system, an avenue seen as able to bring about unfair and unjust treatment. This paper addresses the issues surrounding the under representation of racial minority groups in the U.S in the legal system as well as the peremptory challenge.

There exists a myriad of explanations as to the causes and implications of under representation. Theories related to social capital, culture, stereotypes, as well as human capital have all been advanced in an attempt to explain the situation. The under representation can be attributed to among other factors, the low number of minority groups joining in law schools, as well as the number of minority groups being admitted under the American Bar Association, Barker, (2005).

The under-representation of racial minority groups can be termed as pathetic on account of the fact that, racial minorities constitute well above 30 percent of the American population. It makes a lot of sense to have every race represented well in the legal profession since the race issue has dominated court cases in US for a very long time. It is worthy mentioning that, the American population has been faced with the racial discrimination problem since independence and the legal system is seen as the arbitrator. Racism is still common in the U.S although it has significantly dropped today, compared to the 1960’s. It makes legal sense to have the racial minority represented by lawyers from their communities in legal cases.

The justice system is an area which requires confidence from all sides as this is critical in all arbitration between groups and it serves to ensure fairness to all. In a population as diverse as the American society, the legal system plays a central role and therefore its conduct can add to the interracial tensions if not well handled.

The surest way to guarantee fairness in the legal justice system is the equal representation of race and ethnicity in the legal profession. The under representation needs to be addressed by the education system and especially in the lower grades such as elementary and college levels. That is because; career decisions are shaped at this level. If racial minority is encouraged,, the people from the racial minorities are likely to pursue the legal profession as a career path.

The law schools can play a big role by ensuring that they admit more and more students from racial minority groups into the schools which will eventually see such individuals admitted into the bar. The lack of funding should be investigated as a possible cause for this under representation and if found to be associated, the government should introduce programs which will see more racial minorities represented in the legal profession. It does not make sense to have many lawyers from racial minority communities but fail to maintain them in the justice system; there is a need for lawyers from the racial minority to be retained in the system.

The passing of the civil rights Act of 1964 was aimed at eliminating of all forms of discrimination based on race or ethnicity (Loury, & Glenn, 2002). The under representation of the racial minorities in the legal possession can be attributed to the following theories; the human capital theory, the social capital theory, stereotyping as well as theory of cultural capital (Nelson, Roberts, Monique & Payne, 2000).

The US census bureau (2001) mentions Africans-Americans as well as the Hispanic’s as the largest minority groups therefore the understanding of the racial representation disparities is crucial in the issue of under presentation.

Social capital theory associates the under presentation issue with the positioning of racial minority groups at the bottom of the social economic ladder (Loury, & Glenn, 2002). The above makes racial minorities to be locked out from social networks and makes it impossible for them to access some privileges and opportunities compared to whites who in terms of social economic factors are well endowed, something which highly increases their chances of joining the legal career. To solve the problem of under representation, (Jere, Morehead, 1994) recommends that exposing of more minority groups to diverse networks would help solve the problem.

The human capital emphasizes on labor supply. According to the theory, under presentation has been occasioned by the deficiency, the racial minorities themselves posses (Loury, & Glenn, 2002). As far as the cultural capital is concerned, it states that the attitudes, behavior and ways of doing things influence how institutions operate. In a situation where by the majority groups (Loury, & Glenn, 2002), dominate the law schools as well as the legal institutions whether by virtue of their numbers or otherwise, the legal system will always favor the majority groups as opposed to the minority groups. The above is correct for law schools and therefore could explain the under representation of the minority  in the legal profession .

As, Brown, (1931) notes, racial minority under presentation could be also be explained by the absence of cultural knowledge which may even have a bearing on the family financial background therefore. Cultural background determines career options in as far as legal profession is concerned, whereby a lot of costs are incurred for example bar review charges, LSAT preparations, as well as law tuition fees.

Most law firms and indeed the legal system are full of devoid of negative stereotypes. These misguided attitudes are present in the law profession and makes it hard for racial minority groups to serve in the law field something which further puts minorities at a disadvantage because it affects the hiring decisions by law firms. There is a need for affirmative action which will result into more minority groups admitted into law schools, hence increasing chances of a more balanced legal possession.

Peremptory challenges has for a very longtime raised questions as to whether it is not often than not misused by the trial in unfair elimination of jurys from the racial minorities. According to, Jere, and Morehead, (1994) peremptory challenge serves four main purposes.

A)    To ensure confidence of the litigants in the jury and view the jury as fair.

B)     To promote a fair and challenging voir dire.

C)    To ensure impartiality on both sides.

D)    To ensure the jury panel is centrist and able to achieve unanimity

There are many instances when the juries are ‘challenged’ for no good causes although genuine concerns should form the rationale for a peremptory challenge. Misuse of the provision has raised concerns on the merits of the peremptory challenge. The biggest problem lies in the fact that peremptory challenges other than being based on actual causes are rather based on negative stereotypes.

When a peremptory challenge is carried out on basis of the social background of the jury, this affects the credibility of the jury panel and automatically all sides are likely to claim foul play. The rationale of the peremptory challenge is the principle of a uniform sample and results geared at affording equal and fair representation which takes care of both the interests of the racial minority groups and majority groups. The use of peremptory challenge has raised questions as to whether it does not lead to discrimination in the legal systems. It has in the past, occurred that excluding minority juries from a trial could obviously put at disadvantages the minority defendants (Brown, 1931).

Outlawing peremptory challenge from the courts does not hold the solution to the problem of the under representation of racial minorities system but rather the inclusion of minority procedures and systems which brings checks and balances to the legal systems. The other problem with peremptory challenge is that it denies the ‘challenged’ jury the right to be involved in the criminal justice system (Erickson, & Bowne, 1996).

More often than not, lawyers are known to use peremptory challenges to have only juries participate in the trial who may favor their side. Peremptory challenges are defended by its proponents since it makes sure that the parties which face the jury panel are judged only according to available evidence but not in any other unfair way (Barker, 1995). Although, the peremptory challenge is viewed by many as an attempt towards “jury shaping” (Erickson, & Bowne, 1996), it becomes hard to control or regulate since the peremptory challenge does not require the lawyer to explain his/ her reasons for the ‘challenge’.

The process is further complicated as some view it as the only hope of providing fairness in the process of legal prosecution while others see it as potentially being used unfairly by biased lawyers resulting into two extreme views. The peremptory challenge is also praised for preventing a situation where by any of the sides’ challenges the trial and the decision of jury’s on grounds of unfairness.

Conclusion

The under representation in the legal system in U.S is a problem which needs to be solved. The situation has caused the suffering of racial minority communities. This situation likely to continue until either the situation is corrected or mechanisms are put in place to control factors which work against the racial minority in pursuance of careers in law. As for the peremptory challenge, it should be abolished altogether as it clearly works against the minority communities.

References

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Brown, W. (1931). Racial inequality: fact or myth. The journal of Negro History. Vol. 16. No 1.

Erickson, Bowne, H. (1996). Culture, Class and Connections. American Journal of

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Jere W., Morehead, (1994) When a peremptory challenge is no longer peremptory: Batson’s failure to eradicate individuals’ discrimination from the jury selection. DePaul law review 43. Loury, Glenn (2002). The Anatomy of Racial Inequality. Cambridge: Harvard University Press.

Nelson, Roberts, Monique, R. and Payne. (2000). “Minority Graduates from Michigan

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