NACDL - Race and Public Defense

Race and Public Defense

Issues of racial disparity can be found in every aspect of our nation's criminal system, from stop to sentencing. Public defense attorneys have an important role to play in challenging bias and disparity within the courtroom, within their offices, and within themselves. NACDL is committed to empowering defenders to address the ways in which race impacts our court system, our clients, our communities, and the defenders who serve them.

Racial Disparity Resources on Race and Public Defense Additional Resources on Race and the Criminal Justice System Implicit Association Test

One of the most pervasive features of public defense work is the devastating role that race plays at various points in the criminal process. When individuals in the public defense community raise issues of racial disparities, it is usually in the context of imploring external actors (i.e. law enforcement, prosecutors, and judges) to look at the ways that they perpetuate racial inequities. These factors are widely recognized as systemic and are addressed more fully in areas such as: race and policing, race and pretrial practices, race and sentencing, and other collateral consequences.

“Police officers and prosecutors—the understood antagonists of criminal defendants—are typically described as the bearers of implicit bias. But indigent defense attorneys have their own prejudices that are slowly being unearthed.” -Shaun Ossei-Owusu

All too often, individuals working in public defense have a false sense of security in thinking they are immune to racial biases as they “tend to have nonwhite clients, and because of that, falsely assume that [they] are less likely to have racial bias” (Lyon, 2012). According to Song Richardson and Phillip Atiba Goff, implicit biases can affect the judgements of public defenders, including non-white public defenders, even if they “are committed to zealous advocacy, and consciously and genuinely reject negative stereotypes and attitudes about marginalized populations.”

“Confidence in one’s own egalitarianism can be an obstacle to identifying implicit biases, meaning that individuals who became [public defenders] in order to fight racial injustice may be just as susceptible to the effects of [implicit biases] as those with less noble motives.” – Implicit Racial Bias in Public Defender Triage, 2013.

Implicit bias is a particularly critical issue for public defenders to address because “the effects of implicit bias tend to be most pervasive in situations where an overworked and overburdened individual must make a decision that impacts an individual of a different race” (Blakemore, 2016). Further, implicit biases are especially influential “in circumstances where time is limited, individuals are cognitively taxed, and decisionmaking is highly discretionary—exactly the context in which PDs find themselves.”

It is imperative that those in the public defense community recognize not only the role that race plays in courtrooms, but also how it impacts the way we prioritize cases in our offices, and how it impacts our individual representation.