San Francisco Public Defender Jeff Adachi opened his op-ed on public defender bias with an anecdote:
A couple of months ago, a San Francisco public defender was assigned a case. The client was a 19-year-old African American arrested for carrying a gun. He faced a stiff sentence for weapon possession.
He explained to his attorney that he began carrying a gun after his best friend was shot dead by rival gang members at war with a gang in his neighborhood. He was not part of that group, but he feared he would be killed in the violence that rocked his streets.
The client’s lawyer, who had grown up in an upper-class neighborhood and graduated from a good school, had a hard time understanding this explanation. Why, she wondered, didn’t her client just call the police?
His purpose in relating this story was to show that even public defenders, a subgroup of criminal defense lawyers closer to minority defendants than any other, suffer from bias. It’s written for public consumption, to make a point about implicit bias, that some find it hard to grasp that there are people whose lives were different than theirs, and this gives rise to a misapprehension of how they think, how they react, how they exist.
It’s not my takeaway from the story. It makes me think the public defender in the story is kinda clueless and narcissistic. How does someone do the job of criminal defense lawyering without realizing that poor black kids’ experience doesn’t mirror middle-class white kids’? Is she just thick as a brick, or does she suffer from the narcissism that seems to pervade this age?
This lack of understanding put the lawyer and client in a difficult position. A lawyer who doubts her client will struggle to convince a jury. She might also worry that jurors couldn’t possibly empathize, and push him to plead guilty and accept a plea.
Or she could think harder, realize the error of her assumption born of narcissism, and do her job better. Too much to ask? As long as we’re watering down the expectations of lawyer, to the point where the problem with a Harvard law student who failed the bar twice isn’t that she can’t cut it, but that she wasn’t sufficiently accommodated for lacking the minimum skills necessary to be a lawyer, why expect public defenders to grasp that their clients might be, you know, different than they are?
At the new National Association for Public Defense, Tejas Bhatt shifts this from Adachi’s point about PDs to the wider legal system under the phrase “implicit bias.”
Our country, in the midst of its ongoing national discussion on racial disparity, inequality and bias in the justice system has taken noticeable steps in attributing bias to others. There is no dearth of studies and reports pointing out the iniquities of justice in America: black and minority defendants are 30% more likely than whites to go to prison for the same crimes, for instance.1 in 3 people arrested for drug crimes are black, even though drug usage rates don’t vary widely. These inequalities came to light most harshly through the incidents in Ferguson and New York City.
This isn’t “implicit bias,” no matter how fashionable it is to ram that square peg into that round hole. It’s just plain, old bias. It’s the same plain, old bias that criminal defense lawyers have been fighting over for decades, maybe centuries (I haven’t been around that long). It doesn’t take an anecdote that relies on a clueless narcissistic lawyer to make the point.
But what’s with this characterization of basic systemic racism, and more to the point, classism, as poverty is probably far more responsible for the harms done in the system than skin color or national origin?
The system isn’t a sentient machine, chugging along in its own, even thought it may feel so at many times. The system is made up of thousands upon thousands of individuals, most well-meaning and hard-working. Police officers aren’t inherently evil individuals; the judicial branch isn’t a kangaroo court; prosecutors aren’t all lying, cheating and dishonest; public defenders aren’t universally overworked and incompetent.
In fact, most when polled individually would attest to the nobility of their function and the sanctity of their duty. They all believe that they are doing justice – for whom, remains in dispute, but justice nonetheless.
Hidden in this otherwise very astute expression of the good intentions of the players are two words that give rise to a significant part of the problem: doing justice. You want to do justice, whatever that means? Be a prosecutor. That’s their job. And the system always needs good, honest, smart prosecutors to do justice.
Criminal defense lawyers? We don’t do justice. We zealously defend the accused. We use whatever tools the law allows to do so. And because the system is rife with prejudice, we end up spending most of our energies defending poor minority defendants, because that’s who cops arrest.
While a significant amount of research on bias focuses on police, judges and prosecutors, it would be foolish to assume that defense attorneys are immune from its effects. Defense attorneys are after all, contrary to popular belief, people. As people, defense attorneys are subject to the same pitfalls as others. But as stewards of Constitutional rights and guardians of individual and individuals’ liberty, permitting implicit biases to affect representation of the accused is especially dangerous. For instance, a study of death penalty lawyers found that they, too, had the same biases as the general population: associating white with good and black with bad.
Of course we have the same biases as everyone else. But Tejas conflates two independent factors, that we’re human (fuck you, we are) and that our bias infects our representation. If the latter happens, then it’s because a criminal defense lawyer doesn’t “get” the function. And that’s a very different, and far worse, problem than bias.
The social justice spin is that we should feel empathy, hold hands, cry with the poor, the black, the marginalized. Indeed, Tejas’ solution is to have a “real honest dialogue” about implicit bias, after which we can sing Kumbaya and hug each other. Bullshit.
We need to spend our time working hard to win our clients cases, not crying with them about the sadness of systemic bias. We need to serve our function of defending the accused rather than worrying about doing justice. Ask any defendant whether he would rather have a “real honest dialogue” or walk, whether he wants his lawyer to feel deeply about his suffering or get a two-word verdict?
Are we prejudiced? Of course we are. Anyone who thinks he isn’t is fooling himself. But if that has any effect on the performance of your representation in the trenches, then your problem isn’t with prejudice, but that you’re a shitty criminal defense lawyer. And if you think that defendants ought to fit the paradigm of your life, then you’re just a pathological narcissist who needs to snap out of it. The social justice adoration of feelz doesn’t win cases. Good lawyering does. Let’s bring good lawyering back into fashion.