Gender, Justice, and the Power of Data

The Washington Supreme Court Gender and Justice Commission’s latest report is an update to a fact-finding study undertaken in 1989

BY HON. LISA H. MANSFIELD

Washington Supreme Court Justice Sheryl Gordon McCloud is co-chair of the court’s Gender and Justice Commission. She spoke with me recently about the Commission’s recently published report, “2021: How Gender and Race Affect Justice Now.”

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Hon. Lisa H. Mansfield [LHM]: How did you come to work on the Washington Supreme Court Gender and Justice Commission?

Justice Sheryl Gordon McCloud [SGM]: My path to this work was indirect. I have a criminal justice background—I was a public defender in the 1980s and then I did appellate work. My main area of interest was not women’s issues—except as they came up in the course of representing people fearing or facing claims that they had violated criminal or regulatory laws.

But when I joined the Supreme Court bench, then-Chief Justice [Barbara] Madsen asked me to be the vice chair of the Gender and Justice Commission that she was leading at that point. I accepted. Ultimately, she turned the reins over to me as chair. Fortunately, I had the good judgment to ask Judge Marilyn Paja, of the Kitsap County District Court, to co-chair with me. Justice Madsen said to me, “In 1989, we published a report on how women were being treated by our courts. It’s going to be 30 years pretty soon. You should probably do a look back on that work and see how we’re doing now.” I agreed—with the understanding that race as well as gender be a focus of the study.

LHM: So this current study stands on the shoulders of the 1989 study.¹1 The 1989 report can be found at www.courts.wa.gov/committee/pdf/Gender%20and%20Justice%20in%20the%20Courts–Final%20Report,%201989.pdf. Can you speak to me a bit about those beginnings, and why you felt a need to enlarge the scope of the original study?

SGM: In 1989, there was no Gender and Justice Commission, there was no Minority and Justice Commission, and there was no Interpreter Commission. The Legislature asked the Washington Supreme Court to lead a report on whether gender bias affected our courts. The Supreme Court accepted and created a Gender Bias Task Force. This nonpartisan group was composed of judges, lawyers, academics, elected officials, and non-lawyers who worked in relevant fields. They came from across the state. They delved into the issues that the Legislature asked them to. But if you look at the index of that 1989 report, it’s limited. That reflects constraints of time and money. But it also reflects the voices that the task force heard at that time.

During that period, the voices they heard were saying things like, “I was raped, but I was on a date, so they wouldn’t take my case seriously.” They heard voices saying, “I was divorced and I got some money, but I’ve got the kids and I can’t support the kids on this.” They also heard voices like, “I got my law degree, I can’t get child care, I can’t make partner, and the judge calls me ‘honey’ every time I walk into court.”

The areas that they studied reflected the voices that they heard. They were what some might call “women’s issues”: domestic violence, rape, divorce and its consequences, and treatment of [women] in the profession. They did a great job. It was the first such study in Washington state and one of the first ones nationally to survey how the courts were doing in such issues. The answers were disappointing, but not surprising: They concluded that gender bias did exist in those areas, and the bias was mainly against women.

I think it’s fair to say that 30 years later when we proposed to do our report, one of the reasons that we spent a ridiculous amount of time scoping out and doing interviews about what topics to cover was that we were trying to hear other voices and see what other areas we should look into. We certainly heard some of the same voices our predecessors heard in 1989. But we also heard other voices:

We heard people with deep concerns about criminal justice—not just how it affected men, but particularly how it affected Black and other men of color and the effect that had on women in the community. The voices that we heard were saying things like “My partner is in prison and I’m at home alone with the kids.  He’s not getting out any time soon.  I’ve been holding down three jobs.  My health is deteriorating. I can’t keep this up much longer.” 

We heard about the drug war, high incarceration, increasing incarceration of women, and the terrible impacts on children. We heard about how when a woman is arrested and put in jail—even for a short time—or put in prison, there’s not always a dad to take care of the kids. Consequently, the number of women who lose their kids (because they are incarcerated) is higher than the number of men who lose their kids. Because if a man is incarcerated, usually mom is at home; or if mom isn’t home, grandma is at home.

While we were aware of the vast increase in incarceration of Black and Native [American] men over the last 30 years, we learned that the number has slowly decreased over the past decade. However, the rate of incarceration of Black and Native [American] women over the past decade has sharply increased.

These issues are centered in race. So we were hearing the voices of Black, Native [American], and other women of color. We also heard the voices of people in the LGBT community concerned about commercial sexual exploitation and how its worst impacts were on younger women and men, especially gay youth. And we heard voices of immigrants who were saying it was difficult for them to get to the court, even for protection orders, because of the fear of being deported. We heard immigrant women who weren’t concerned about their immigration status, but who had trouble understanding English, expressing the same problems.

We came out of this process with a different understanding of “women’s issues.”

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• She currently serves as co-chair of the Washington Supreme Court Gender and Justice Commission, as a member of the Supreme Court’s Rules Committee, and as the liaison to the Supreme Court’s Pattern Instructions Committee (on which she previously served as a lawyer-member).

• She is also on the Washington State Bar Association’s Council on Public Defense. She speaks regularly at legal and community events throughout the state on topics ranging from ethics to criminal justice.

• Before she became a judge, she handled hundreds of cases before the Washington Supreme Court and other appellate courts. She also taught at Seattle University School of Law.

• She has been honored with several awards over her career including the Washington Association of Criminal Defense Lawyers’ highest award, the William O. Douglas Award, for “extraordinary courage” in the practice of law; the Washington Women Lawyers King County Chapter’s 2015 President’s Award, and the Cardoza Society of Washington State’s 2018 L’Dor V’Dor Award.

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LHM: Given the criminal justice lens you applied, I can see how the report really grew from the original 1989 study. How long did the interviewing process take?

SGM: I think we spent a year interviewing lawyers, judges, community activists, people that defense attorneys typically worked with, people that prosecutors typically worked with, and academics on the current problems affecting women.

LHM: You heard a wider array of voices saying troubling things about the disparate impact of race and gender throughout the justice system. What did you think a study would accomplish?

SGM: We really wanted hard facts, scientific data, and a view of what it’s like on the ground. How many women are in prison? How many Black women are in prison? Let’s disaggregate by race and ethnicity, because if we just talk about the majority of women, who in Washington are white, we are not getting a comprehensive picture of women. We were looking for data so we could provide a detailed report, so that a layperson could read, learn from, and rely on the report for information on each of the 20-some odd topics studied. The better the data, the better the chance that people could name the problem and struggle over solutions.

LHM: Was there a concerted effort to make the report accessible such that a non-lawyer could understand it?

SGM: That was definitely a major consideration in writing the report. That was our goal. I hope we succeeded.

LHM: You did! Not only is it readable, it’s impactful. There were times that I had to stop reading and wonder if I read what I read correctly. For instance, I was stunned at the fact that Black, Native [American], and women of color are sentenced at rates two to eight times higher than that of white women.

SGM: I remember reading that. Those numbers came from one of our pilot research projects. I must have read it five times. I insisted that the data be rechecked.

LHM: That highlights the importance of data.

SGM: You can disagree on why, and you can disagree on remedies, but there it is. That’s our situation, and it’s a problem.

Data is nonpartisan, and we are a nonpartisan judicial branch organization. We don’t write legislation. We wanted to point to the problems and have stakeholders discuss options. If you read through the recommendations, you’ll see they are not partisan. They don’t contain specific legislative language. What they do is identify problems, present areas for improvement, and offer solutions that other jurisdictions or organizations have considered, or that we actually studied in our pilot projects.

LHM: How did this report incorporate data?

SGM: The report is strongly data based. We have only given conclusions that are based on data in which we have confidence. We have noted where data improvement is needed and we have made concrete recommendations about that. Many of those recommendations—like how to code race and ethnicity more accurately so we don’t miscount the entire Latinx segment of our population, like how and why to code LGBT status, and like how to allow for disaggregation by more than one variable, so you can get a snapshot of say Black women rather than just Black [people] or [just] women—are designed to make all data collection more useful. I want people to know that they can depend on this report.

LHM: Besides centering on data, what other concepts would you want a reader to take from the study?

SGM: I want people to know that when you’re asking about women’s status in the courts, you really must look at all groups that comprise women. Because if you look at what you think the majority is, you’re missing something. For example, you would miss the impact of increasing rates of incarceration of Black women. You would overlook the fact that while there have been tremendous advances in how courts treat violence against many women, we have been failing missing and murdered Indigenous women.

I don’t want disaggregation to be just a big word. I want it to reflect the fact that there are people being overlooked if you don’t look past findings about the majority of women. Our courts can’t afford to overlook anybody.

LHM: As you were putting the pieces of this study together, what type of support did you have?

SGM: We had a fantastic nonpartisan, statewide, active Advisory Committee. It included elected officials from both major parties, rural and urban, judges, lawyers, lawmakers, and academics. We had social science researchers including students, legal researchers including students, and expert judges and lawyers leading each study area.

LHM: Now that the data has been gathered and the study is done, the question arises: “What’s next?”

SGM: We conducted five pilot projects to expand the data and test some suggestions for improvements. Briefly, there is an evaluation of the efficacy of DV-MRT (Domestic Violence – Moral Reconation Therapy), an evaluation of courthouse child care, an analysis of data from the Caseload Forecast Council (successor to the Sentencing Guidelines Commission), a study of workplace harassment in the judicial branch, and an analysis of jury summons data.

Some of these projects point a way forward. We now have data showing that low-cost treatment for people convicted of domestic violence crimes, treatment they can actually afford, can work just as well as the high-priced, private offerings. We have data showing that affordable child care helps people get to court—which is especially important for low-income women, including women of color. We have data showing specific steps that taxpayer-funded agencies can take to gather and code data on those who come into contact with the justice system far more accurately. We have data showing the need to address harassment—race, gender, and LGBT-based harassment—in our house, the judicial branch. And we have data showing the need to improve representation of women and people of color on juries.

LHM: Justice Gordon McCloud, thank you for helping to lead this important work of the Washington Supreme Court Gender and Justice Commission and sharing the important data it contains. What is a good starting point to learn more about this work and move it forward?

SGM: Read, share, and discuss the report (or its shorter executive summary). It’s called “2021: How Gender and Race Affect Justice Now” and it’s located at www.courts.wa.gov/genderjustice (Gender Justice Study Tab). Get more involved: contact us at commissions@courts.wa.gov. And as we study the impact of existing or proposed laws and policies on women, remember that the impact may differ for different subpopulations of women. That’s critically important, because the Washington courts serve all women, not just some.

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LEARN MORE

5 Pilot Projects Initiated

As part of the 2021 Study, the Commission conducted five projects to fill research and data gaps identified in the course of conducting the 2021 Study. The Commission solicited project ideas from stakeholders. After the Commission vetted and scoped the project proposals submitted by stakeholders, proponents of select proposals were then invited to present their project ideas to the Gender Justice Study Task Force and the Gender Justice Study Advisory Committee.

NOTE    

1.  The 1989 report can be found at www.courts.wa.gov/committee/pdf/Gender%20and%20Justice%20in%20the%20Courts–Final%20Report,%201989.pdf.