I woke up today, the day the nation celebrates Dr. King’s birthday, thinking of our community.  We fight every day to represent individuals.  Not because of who they are or the color of their skin; but because we believe in equal justice.  Yet we operate in a system that is anything but equal or just.  While we are committed to representing individuals, we are simultaneously on the front line of a struggle to force our country to live up to its highest ideals.  There can be a tension between “cause lawyering” and “client-centered lawyering" (as I discuss on page 1016 of the article linked below).  But I am convinced that through individual representation, our nation’s public defenders are the soldiers who are most likely to usher in a racially just system.  

Any thoughtful person who has been exposed to our criminal justice system in a meaningful way knows one simple truth: America’s criminal justice system is racist.  I do not mean to suggest that those of us who work in the system intend to treat African Americans more harshly than whites, but we all work within a system that does just that.  Our system disproportionately arrests, prosecutes, convicts, and sentences African Americans.

But I also believe – and I recognize that this is subject to debate – that while there are some explicit racists who work within the system, most police, prosecutors, judges, and defenders believe they are behaving in ways independent of race.  Most see themselves as egalitarian, concerned only with justice.  And nevertheless, they help perpetuate a system that is anything but racially just.

How can it be that well-intentioned people drive such an obviously unjust system.  The answer likely lies in a concept called implicit racial bias (IRB), the subconscious association between race and crime that influences us all.  The fact is that even the best intentioned of us harbor biases.  Without realizing it, we act on those biases.  This bias-driven decision making at every level helps explain the racial injustice of the American criminal justice system.

As public defenders we joined this vocation because we refuse to tolerate injustice.  Many of the best of us are driven out of this profession, overwhelmed by a sense of helplessness in the face of such injustice.  But understanding the power of implicit racial bias, and developing skills to counteract it, is a powerful tool to try to realize racial justice.  Consistent with their obligations to their individual clients, public defenders can help to expose these hidden biases and work to minimize their influence. 

I joined a group of authors who wrote short pieces about this issue for the July 2013 issue of The Champion, the monthly magazine published by The National Association of Criminal Defense Lawyers.  In my contribution I lay out a strategy for defenders:

Criminal defense lawyers frequently find themselves fighting to force the system to live up to its most cherished ideals, and among them racial justice certainly ranks high. Because they represent so many clients of color in a system fraught with implicit racial bias, they must develop a strategy to counter this subversive force. Such a strategy must include three prongs: self-awareness, education, and resistance.

The first prong, self-awareness, requires making sure criminal defense lawyers do not come to accept the notion that race implies criminality, for this way of thinking or feeling affects the people who defend the accused as much as it affects others in the system. When defenders spend every day working in a system that constantly bombards them with the message that there is a strong correlation between crime and race, even the most conscientious defender will be influenced. Because defense lawyers cannot effectively fight against a force they have come to accept, they must learn to recognize, and fight to resist, these impulses. Through training and mentoring, each defender must teach other defenders to do the same.

Having done this, the next task is to educate others in the system about implicit racial bias so that they can become aware of it in themselves. Implicit racial bias, for example, causes police to disproportionately target and arrest people of color. It drives prosecutors to consider race when making charging and plea decisions. It influences how jurors evaluate evidence. And it affects how judges make sentencing decisions. Because even the best-intentioned individuals are affected, defenders must consider ways to make other actors aware of how they might perpetuate racial disparity, and work to persuade them to resist these impulses. Defense attorneys have several ways to educate others about this bias: voir dire, motions practice, use of experts at trial, jury instructions, and sentencing advocacy.

During voir dire defense counsel should work to make jurors aware of the problem of race bias and identify those jurors who appreciate its influence. Through motions practice defense counsel might educate the judge about how bias can influence police officers and ask the judge to consider it when relevant. Counsel should consider using expert testimony to educate jurors about implicit racial bias. When relevant, they should consider crafting an instruction that explains the dangers of race bias and provide guidance on being conscious about it. And the advocate can discuss how this phenomenon influences judges at sentencing along with statistics that highlight relevant racial disparities when available.

At every step of the process the lawyer will face the likelihood of being shut down when attempting to introduce this social science. But by raising the issue, the lawyer is educating the judge, who plays a critical role in addressing racial disparity in the criminal justice system.

However, despite the lawyer’s best efforts, getting others to acknowledge their biases or to admit that there is racism in the system over which they have stewardship will be difficult. It is during these times that the advocate can feel hopeless, even complicit, and may consider giving up and leaving the system. It is for these moments that the third prong is important — resistance. Criminal defense attorneys must provide inspiration and support to colleagues who are feeling beaten down. For there is value in being the one voice in the courtroom reminding others of the injustice in the system. With enough of these voices, spreading throughout the criminal justice system, consciousness will slowly be raised.

This strategy is more fully developed in a recent article published this month the New York University Journal of Legislation and Public Policy.  The article provides practical strategies for our community to begin to bring the issue of IRB to the surface through motions practice, voir dire, use of experts, storytelling, and sentencing advocacy.  Hopefully, it provides a framework within which we can begin to educate our community to combat IRB and force a system that is more racially just.