After a year of building this site, it only recently came to me that I have neglected to address a very important topic: Implicit Bias and Public Defenders.
Recently, the Suffolk County District Attorney from Boston, Massachusetts set off a fire storm with her attacks on public defenders employed by the Committee for Public Counsel Services (CPCS). There is little doubt that D.A. Rollins was out of line by attacking hard working public defenders. The fact is, she puts people of color in cages on the daily. She recently fought, unsuccessfully, to send a black man with cancer to jail after he was released by the court.
Privilege Check: I received some valuable feedback from two colleagues that I wanted to incorporate here (5/21/20). First, DA Rollins is a black woman. I am a white man. And with that, I write not only from a position of privilege and power, but also with my own implicit biases. I did think about this as I wrote the piece, and I continue to think about it.
But, for a moment, let’s forget about this so called “progressive prosecutor” and her divisive and ill informed views about public defenders. Let’s talk about an issue she did raise (kinda): implicit bias and public defenders.
What is implicit bias?
According to the Kirwan Institute For The Study of Race and Ethnicity, “Implicit bias refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.”
These attitudes and stereotypes can be either positive or negative. What’s more, they are buried deep within your subconscious. They come from your life experiences including media you have been exposed to.
An AMAZING TedX talk on this by Kimberly Papillon is available here. In fact, stop reading this NOW and watch her talk (it’s not even 20 minutes!)
Why do I need to learn about implicit bias and public defenders?
Implicit bias impacts your practice and thus, your clients. For this reason, understanding implicit bias and how to address it in your practice, is critical for every public defender.
If you are a public defender, you probably think of yourself as an anti-racist. You have probably read The New Jim Crow and Just Mercy. (If you haven’t, or need more recommendations, check out my list of must reads!) Your outrage at our racist criminal justice system is at its highest level of your career. That doesn’t mean you are immune from implicit bias!
Implicit biases are in our subconscious and everyone has them. What is really scary about implicit biases? They are not always consistent with our personal beliefs!
That’s right! You can be a white anti-racist public defender and harbor biases against people of color. You can also be a black public defender and harbor issues against people of other races. (To be completely transparent, the former is where my biggest concerns lay.)
White public defenders ignoring implicit bias is the product of white privilege. Thus, while it is important for all public defenders to understand, white public defenders have an increased need and responsibility to educate themselves and seek out training about implicit bias.
White male public defenders also have a special responsibility to be aware of their anti-woman bias.
How does implicit bias impact my practice?
Implicit bias impacts how you view your clients and their cases. You may think you are treating everyone fairly, but the truth of the matter is you may not be! How do you know? For starters, take a test at Project Implicit.
Implicit bias impacts how law enforcement views suspects, i.e. your soon to be clients. It will also impact how they view witnesses, make credibility determinations, and direct their investigation.
Implicit bias impacts how judges view your clients and how juries view your clients and witnesses in a trial.
Speaking of juries, let’s talk briefly about Batson challenges. The United State Supreme Court, back in the “good ole days,” held that racial discrimination during jury selection was unconstitutional. Unfortunately, Batson did not eliminate racial discrimination in jury selection.
Three states have recognized this and the role implicit bias plays in jury selection. Here is a short article on what those three states are doing. Give it a read, (it has more resources for you to explore as well), and start to think creatively. How can you fight back against implicit bias during jury selection? Is your public defender agency coming up with a litigation strategy for this?
One of the best ways to combat implicit bias is to be aware that it exists and to think critically about your practice. The more you think about it, the more you commit yourself to fighting against it, the more successful you will be. Don’t believe me? Then you didn’t watch Kimberly Papillon’s TedX talk. Gentle nudge, it is available here.
Implicit bias and public defenders: A list of resources.
I am not going to sit here and proclaim to be an expert on implicit bias. I’m not a psychologist. I am still learning about this myself and advocating for more training on implicit bias and how it can impact our practice and our clients.
The purpose of this post is to alert you to the issue and inspire you to learn more about it and LOBBY YOUR PUBLIC DEFENDER AGENCY TO DO A YEARLY TRAINING!
This is not the kind of thing that you can learn once and be set. This is such a significant topic that it needs to be addressed every year. Implicit bias is something you need to be thinking about every day. And the training needs to be attended by not just lawyers, but every legal secretary, investigator, and social worker.
Here are some resources to help acquaint you with the topic.
Federal Defenders of New York Training Packet: Recognizing and Confronting Bias
Implicit Racial Bias In Public Defender Triage
Understanding Implicit Bias In Public Defender Social Workers
Do Public Defenders Spend Less Time On Black Clients?
Regulating Implicit Bias In Federal Court
Implicit Bias In Juvenile Justice – Literature Review
Jeff Adachi’s Talk On Racial Implicit Bias (Another reminder of what a loss his passing was)
Some final thoughts.
First, it is important for my readers to know that I am writing from the perspective of a white male.
Second, I want to acknowledge that we, as a community, need to address the lack of diversity in public defender agencies and a lack of equality within those agencies. Remember, diversity only takes you so far. If you have a diverse workforce but they are not given equal opportunities as their white counterparts, then what is diversity doing outside of checking off a box? (More on this in a forthcoming post).
The discussion needs to be more than, “but the legal profession as a whole suffers from a lack of diversity.” That is true, but as my former trial practice professor would say, “what’s that got to do with price of fish?”
The discussion also cannot be “but prosecutor offices also lack diversity.” That’s true, but, such a response is more of a deflection than addressing our own problem.
Public defender agencies and criminal defense advocacy organizations need to take the lead when it comes to promoting diversity and equality in the legal profession.
We must be constantly asking ourselves: How can we welcome people of color into the legal profession? How can we support people of color once they enter? What can we be doing to recruit young, talented, attorneys of color into our organizations? The list goes on.
Thank you for taking the time to read this post on a very important issue. And thank you for educating yourself and bringing this issue to the forefront of your respective public defender agency’s policy initiatives.
