Michigan Explores Racial Disparities In Judicial Discipline

The Michigan Judicial Tenure Commission has issued an Equity Report in respone to concerned expressed about racial disparities in judicial discipline

This report responds to concerns raised by the Association of Black Judges of Michigan that the Michigan Judicial Tenure Commission (JTC) grievance process results in disproportionately severe sanctions for Black judges, particularly regarding public complaints. In response, the JTC and the Michigan State Court Administrative Office (SCAO) contracted with the National Center for State Courts (NCSC) to perform an assessment of JTC grievances between 2008 and 2022. The assessment consists of a statistical review of key decision points and outcomes in the grievance process to determine if, and where in the process, disparities and/or disproportionalities exist. The contract also anticipated additional study of key decision points if statistically significant racial disparities were found. This report describes the methods, findings, and discussion from the initial assessment and recommendations for further study.

Findings

The findings presented in this report reveal two points in the grievance process that result in disparities in outcomes between Black and White judicial officers. First, grievances against Black judicial officers are significantly more likely to advance to full investigation compared to those against White judicial officers. Also, Black judicial officers are significantly more likely to receive a public outcome than White judicial officers following a full investigation. However, this disparity occurred only for judicial officers who remained in their position during the entire investigation process.

White judicial officers under full investigation are more likely to retire, resign, or to lose reelection than Black judicial officers under full investigation. According to the analysis, if White judicial officers who left office to avoid public outcomes had remained in office, there would be no significant disparities in public outcomes between Black and White judges. Understanding the decision to retire or resign when faced with a public outcome is beyond the scope of this phase of the review but will be important to investigate in the next phase.

While not a decision point in the JTC process, it is notable that there is a significant difference in the average number of grievances per judicial officer. For every Black judicial officer in Michigan, there are 6.43 grievances in the review period. For every White judicial officer, there were 5.36 grievances. Additional efforts to more comprehensively evaluate this and other decision points in the judicial grievance process could offer a more holistic understanding of judicial officers’ experiences with grievances and provide insights about practical equity interventions within the court’s purview to address.

Next steps

The association between race and disparate outcomes at certain phases of the grievance process was established in the current analysis. This phase of the analysis found one mediating factor; the inclusion of judicial officers who left office during the grievance process eliminated racial disparity at that decision point. However, there are several more as-yet unexplored variables in the grievance process that may mediate the effect between race and grievance outcomes. Further, it will be necessary to further explore why White judicial officers are more likely to leave office during the grievance process than Black judicial officers.

The decision to explore these mediating variables in a later phase of the project was purposeful. The intent of this first phase of the project was to diagnose if there were any racial disparities in outcomes at each decision point in the grievance process and, if so, where they occurred. The next phase is to investigate the factors that may contribute to the differences in outcomes.

For example, annual reports from the JTC show that most grievances received have underlying criminal and domestic relations cases. It is possible that, for a variety of reasons, there is a difference in the race of judicial officers that handle these case types. Other variables that may play a role include (but are not limited to) grievant type, reason for grievance, grievance severity, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and past grievances. Further statistical analysis will evaluate if disparities in racial groups remain when controlling for these additional variables at various points of the grievance.

When the effects of all potentially mediating variables are accounted for, the unexplained differences between White and Black judicial officers may be attributed to the effects of bias or discrimination on the part of the decision-making entity.  In order to investigate how bias and discrimination operate to affect the grievance process outcomes, additional statistical analyses should be supplemented with interviews and file reviews to explore and comprehensively identify all potential reasons for the disparities. Even if there are no indications of explicit bias among JTC decision-makers, it is possible that implicit biases contribute to observed racial disparities in decision outcomes.

Implicit biases arise and are expressed contextually; they are influenced by systemic, cultural, institutional, organizational, and interpersonal factors and are more likely to manifest in certain situations or under certain conditions. Interventions that target these conditions in the decision-making environment and/or the decision-making process can be productive approaches to addressing concerns about implicit bias. Interviews and in-depth file review can provide the information needed to identify processes or practices that could be targeted for this kind of intervention.

Additional research can also help to understand the disparity in judicial officers’ choice to leave office during a full investigation when facing likely public outcomes. Communications with the JTC on the grievance process indicate that at any time following the decision to move to a full investigation—generally the point at which the judicial officer is made aware of the grievance—the judicial officer can offer to retire or resign. The communication exchange between the JTC and the judicial officer about this option to negotiate an agreement to retire or resign merits further study to identify factors contributing to the observed disparity at this decision point.

For example, in other sectors, research has documented that women and people of color are less likely to negotiate and, when they do, often face penalties. Moreover, structural and institutional factors, such as labor-market discrimination, may contribute to the decision whether to resign prior to the conclusion of an investigation.  Interviews with these judicial officers in the proposed next phase of study will provide insight into the options they believed were realistically available to them when they were faced with a likely public outcome stemming from the JTC’s investigation. This additional research to understand the factors contributing to the observed disparity at this decision point will help determine whether procedural improvements could be implemented in the grievance process to promote equity.

In summary, these analyses identified three points in the process where racial disparity occur and therefore need more in-depth analyses: number of grievances filed per judicial officer, grievances proceeding to full investigation, and factors influencing a judicial officer’s likelihood of remaining in or leaving their position when facing a likely public outcome. This further investigation can be accomplished using a variety of research methods to best understand the sources of disparity. Specifically, advanced statistical techniques can be used to examine factors such as grievant type, reason for grievance, jurisdiction location type (e.g., rural or urban), judicial tenure, gender, and number of past grievances.

(Mike Frisch)