Can Public Defenders Be Racist? Yes.
A few years ago, a woman of color was in a space with two white women. One of the white women told the other white woman a story in the presence of the woman of color, dropping the n-word in the middle of telling it. When the woman of color asked the storyteller not to use the racial slur in her hearing, the other white woman responded, “don’t tell her what to f—ing say.” Both white women then proceeded to gang up on the woman of color, indignant that she would dare voice her displeasure with the storyteller’s use of the slur.
This exchange did not happen in Trump’s White House. It did not happen at a KKK gathering, or in a Three-Percenter meeting, or in any right-wing environment in the deep south. This happened in a public defender office in New York City. In a so-called progressive city in the 21st century, two white public defenders not only felt comfortable saying the n-word in front of a person of color, but also chided that person for having the gall to be offended by their conduct.
Public Defense Is Not A Racism-Free Profession
This one anecdote puts to rest the myth amongst too many white public defenders in America that public defense is a racism-free profession. If one were to poll nonwhite public defenders across the country about racism in the profession, there would likely be enough stories to fill several volumes.
The idea that public defenders cannot be racist is not just false; it is dangerous. White practitioners who believe that are grossly ignorant of the realities of racism and uncommitted to improving themselves and their white colleagues.
Understanding The Role Of Racism In The Criminal Judicial System
Racism is one of the oldest institutions in America, spanning over four centuries. It predates the constitution of this country. It has affected every aspect and area of society, from medicine to housing, from education to policing, from politics and government to media and entertainment. It has infected everyone in America, bestowing benefits and privilege on white people while disadvantaging persons of color, especially people of African ancestry. It is therefore a ludicrous proposition that white Americans can shed centuries of racist thought and behavior simply by joining a particular profession, especially a profession that provides no real avenues for structural change.
The criminal judicial system was an apparatus born out of racism, birthed out of the white backlash to the end of chattel slavery in 1865. It was designed to cyclically ruin the lives of scores of Black people while keeping the institution of slavery alive through the loophole created by the Thirteenth Amendment.
The formula was simple: routinely deny people of color opportunity to better their lives, and then criminalize their subsequent failures. This is why throughout American history, the masses of Black people have consistently been subjected to substandard education, paltry economic conditions, aggressive policing and other wrongs. And within the criminal injustice labyrinth, every step of the process exists to demoralize the people it was designed to trap: poor people of color. Public defense does very little to alter this paradigm.
The Role Of Public Defenders In A Racist System
American racism has had long-lasting social effects. In the minds of many, it has transformed Black people into dangerous savages and lascivious jungle bunnies, unintelligent organisms in need of civilizing, caging, euthanizing, and leadership from whites. These attitudes persist in American society today, and it manifests itself in white Americans, including white public defenders. It impacts how white public defenders view their Black and Brown clients, and also affects how they feel about their colleagues of color.
Most often as public defenders, we do damage control; we attempt to limit how much the system wrecks individual lives. This is important work that is most effectively done with race-conscious attorneys, but it will not transform the judicial system into a just or fair system. The system was established to be racist; and no matter how politicians try to reform it, it will always tend to racial injustice.
Understanding How Public Defenders Can Be Racist
On one side of the spectrum are white public defenders that disserve their Black and Brown clients out of disdain for them. These attorneys are the kind to misadvise their clients, dispose of their cases with inadequate or even dangerous dispositions, file no motions and/or otherwise provide deficient legal representation. Of course, public defenders that act accordingly could be motivated by laziness. Some, however, are racists that see their nonwhite clients as subhuman, as primitive beings undeserving of compassion or care.
At the other extreme are white public defenders with a savior complex. “Savior complex” refers to a “strong tendency to seek people who desperately need help and to assist them…” However, the manifestation of this tendency in white public defenders is often racist because of underlying perceptions of the Black and Brown clients they represent.
As one example, we’ve heard many white public defenders talk about the need to “save clients from themselves,” as if our clients are incapable of making decisions regarding their own lives. We’ve seen and heard white public defenders talk down to clients, talking to grown men and women like they are rotten children. Some have gone far enough to “talk Black” and “act Black,” mimicking racial stereotypes about nonwhite persons. Others will talk about their clients to their colleagues in racially insensitive ways. A lot this behavior also has roots in racism.
Like any other profession, people go into public defense for all kinds of reasons. Some of those reasons are noble; some of those reasons are not. There are white public defenders who join the profession not out of a passion for the work or a duty to serve, but to make themselves look good and paint themselves as crusaders for justice in the eyes of others. In this regard, they are no better than feckless politicians that invoke racial justice issues to win progressive votes; they don’t care about the work, only the self-imaging. This is particularly true among white public defenders that excel in trying cases, but are deficient in the other crucial aspects of the job.
Racism In Public Defense Extends Beyond Clients
Racism from white public defenders is perhaps most evident in how they treat their colleagues of color. Examples abound, ranging from white attorneys doubting the abilities of their darker colleagues and second-guessing their judgment to literally using racial slurs. White supervisors will often tolerate patently racist behavior from white attorneys, if they are not engaging in that behavior themselves. White attorneys will receive opportunities that Black attorneys don’t even hear about. Black non-attorney staff in particular are frequently disrespected by white attorneys.
Most of these individuals will not commit legal malpractice in their representation of accused persons, at least by the lax standards of effective assistance of counsel. However, they make the work environment hostile and unpleasant for their darker colleagues. This can negatively impact those defenders’ ability to effectively represent their clients, as well as grow to their full potential as attorneys.
Take the opening anecdote as an example. The white attorney who said the n-word was a respected and skilled appellate attorney, and has arguably done good for Black and Brown clients. Yet, she joined in attacking a person of color who rightly took issue with her language. The second white attorney had a reputation of being a highly successful trial attorney. However, her commitment to justice for her non-trial clients, especially those charged with just misdemeanors, is questionable at best. Moreover, she is also renowned for being one of the more racially insensitive colleagues and is roundly disliked and distrusted by Black and Brown attorneys that know her beyond the superficial.
White Defenders Must Acknowledge Their Own Racism and Anti-Black Bias
A white public defender that believes that they cannot be racist because they are a public defender is no different than a white person that denies their racism on account of having Black friends. Racism is not about hating all Black people; it is about protecting and advancing a system that prioritizes the lives of one group over another group based on the color of their skin.
By contraindication, combating racism is not about liking a few Black people or about providing adequate or even zealous representation to poor Black people. Being anti-racist means that one is fighting against a system that devalues the lives of human beings based on race. That devaluing of life occurs in every kind of American workplace, including in public defense offices. White defenders that fail to grasp this are a part of the problem.
Be part of the solution by acknowledging your own racism and anti-Black bias. Be a better colleague to your Black and Brown colleagues. Constantly check yourself as you provide representation to your Black and Brown clients. And above all, when you witness your racism, whether from a judge, a prosecutor, cop, or fellow public defender, call it out!
The Black Attorneys of Legal Aid (BALA) caucus is an amalgamation of Black attorneys that work for the Legal Aid Society out of New York City. BALA is committed to advocating for racial justice both within and without the Legal Aid Society.
