The Interbranch Commission’s genesis was a three-year study conducted by the Pennsylvania Supreme Court to determine whether racial or gender bias played a role in the justice system. The study was initiated in the fall of 1999 by then Chief Justice John Flaherty who appointed the Supreme Court Committee on Racial, and Gender Bias in the Justice System to conduct it. In March 2003, the Committee completed its study and submitted its 550-page Final Report with 173 recommendations to the Court. Eighteen months later, led by the Supreme Court, the leaders of the three branches of Pennsylvania state government announced the formation of a new Interbranch Commission for Gender, Racial and Ethnic Fairness. The Interbranch Commission was charged with the responsibility of implementing the extensive recommendations from the study.
Considered a model among the nation’s courts for addressing bias, the Interbranch Commission applies the resources of all three government branches to the implementation of the recommendations from the Court’s study. Pursuant to its Mission Statement, the Commission also seeks to “raise both public and professional awareness of the impact of race, ethnic origin, gender, sexual orientation or disability on the fair delivery of justice in the Commonwealth of Pennsylvania; suggest ways to reduce or eliminate such bias or invidious discrimination within all branches of government and within the legal profession; and increase public confidence in the fairness of all three branches of government in the Commonwealth of Pennsylvania.”
Funded by the Legislature through the judicial branch, the Interbranch Commission has been endorsed and supported by the three branches of Pennsylvania government. Pursuant to the Commission’s Bylaws, each branch appoints eight members of the Commission, for a total of 24 members. The members are diverse – geographically, racially, ethnically and by gender. All members are assigned to one or more of the six Commission Committees, including Criminal Justice, Jury Service, Interpreter Services, LGBTQ Rights, Domestic Violence and Sexual Assault Victims, and Equal Opportunity and Diversity.
The full membership of the Interbranch Commission meets quarterly in one of three locations in the Commonwealth: Philadelphia, Pittsburgh or Harrisburg. One of the quarterly meetings is conducted for the public each year at which time the Commission’s Annual Report is presented.
In the 16 years since its inception, the Commission has made great strides toward achieving its goals. Among other things, the Commission has devised a statewide policy for the Pennsylvania courts on Non-Discrimination and Equal Employment Opportunity and played a critical role in the passage of landmark legislation on the provision of interpreter services in the courts and administrative agencies. It has also produced a key guide designed to combat human trafficking in Pennsylvania by providing an overview of existing legal protections and setting forth principles to be used by jurisdictions throughout the Commonwealth to address the unique needs of victims of sexual exploitation.
The Commission has also submitted a report and action plan to the Supreme Court designed to standardize jury selection procedures in the state and increase diversity among jury members. Relatedly, in order to create a more diverse juror pool that reflects Pennsylvania’s demographics, the Commission worked with four state agencies to establish a Statewide Juror List that reaches a much more racially and socioeconomically diverse group of citizens. Commission staff also worked to increase juror diversity throughout the Commonwealth by producing two pamphlets that educate LEP individuals about jury service and the level of English language proficiency needed to serve on a federal and state jury.
This emphasis on diversity mirrors the Commission’s initiative to bring attention to reports over the past three years that some state court judges and personnel have been collaborating with Immigration and Customs Enforcement (“ICE”) agents to effectuate the detention or deportation of immigrant court users in and around Pennsylvania’s state courthouses. As a result of the Commission’s efforts, the AOPC issued an advisory which informed judicial districts of potential Title VI violations; similarly, ICE issued a directive that limited the scope of the agency’s enforcement actions in federal, state, and local court facilities to specified individuals. The Commission continues to combat this unconstitutional interference in state court business and is awaiting a response from the PA Supreme Court to the PBA’s and Commission’s request that the Court adopt guidelines designed to reduce ICE’s ability to arrest and detain immigrants without a warrant in and around these facilities.
Upon learning of two rule changes proposed by HHS and HUD during the final days of the Trump administration that would have removed existing non-discrimination protections for LGBTQ individuals and harmed transgender individuals in particular, the Commission submitted formal comments in opposition to both proposals. The Commission is also currently working to update the PA Department of Human Services’ regulations to include non-discrimination protections for LGBTQ foster youth in out-of-home placements.
Reducing disparities within the criminal justice system is also a priority for the Commission, specifically in the application of the death penalty, in the operation of the indigent system, and within the juvenile justice system. To that end, the Commission recently published its Memorandum in Support of Reform of the Provision of Criminal Indigent Defense Services in Pennsylvania in support of indigent defense reform, which is intended to serve as the basis for bipartisan legislation that will overhaul the Commonwealth’s broken system and ensure that Pennsylvania delivers on its constitutional obligation to provide effective assistance of counsel to indigent defendants.
Regarding the Commission’s work to address disparities within the Commonwealth’s capital punishment system, the Commission contracted with Penn State University to conduct a statewide study on racial, ethnic, and socioeconomic disparities in the administration of the death penalty in Pennsylvania. The study’s findings included evidence of racial disparities in the prosecutorial decision to seek the death penalty in cases involving the murder of Black victims. It also found that the type of legal representation (public defender versus private defense attorney) as well as the geographic location of the case within the state influenced the decision to prosecute and the case outcome. The Commission also actively participated in a second, broader study of Pennsylvania’s capital punishment system, conducted by the Pennsylvania Joint State Government Commission, which found numerous serious deficiencies in the administration of the death penalty in Pennsylvania. Finally, and most recently, Penn State received a grant from the National Science Foundation to conduct an extension of its original study for the Commission on Pennsylvania’s death penalty system. The study’s preliminary results reveal wide variations in the interpretation and application of aggravating factors by prosecutors in general criminal homicide cases, leading to the embedding of significant geographic arbitrariness in the prosecutions of such cases in Pennsylvania. The Commission is approaching the legislature and the Governor’s Office about implementing legislative changes responsive to these disparities.
To address the jailing of indigent defendants for failure to pay court costs/fees and fines, the Commission produced and widely distributed a guide entitled “Ending Debtors’ Prisons in Pennsylvania: Current Issues in Bail and Legal Financial Obligations: A Practical Guide for Reform.” Additionally, the Commission drafted and distributed to the Commonwealth’s President Judges a set of proposed rules designed to decrease the use of cash bail in their judicial districts. It also collaborated with the ACLU on an amicus brief to the Pennsylvania Supreme Court, challenging a lower court’s holding that an existing rule of criminal procedure does not require a court to consider the financial resources of the defendant when imposing court costs. Relatedly, the Commission is working with the Philadelphia Lawyers for Social Equity to rescind a new policy issued by the Board of Pardons that requires payment of outstanding court costs as a burdensome precondition for a clemency hearing.
For more information on the work of all six of the committees, please see the website’s Committees page.