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Jonathan A. Rapping

Excerpted from: Jonathan A. Rapping, Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparity in the Criminal Justice System, 16 New York University Journal of Legislation and Public Policy 999 - 1048 (2013) (192 Footnotes) (Full Article)

ABSTRACT

Arguably, no feature of America's criminal justice system is more obvious than its disparate impact on people of color. That so many well-intentioned people working within this system help to reinforce this status quo is at first blush mystifying. But understanding the influence of implicit racial bias (IRB), that subconscious association between race and crime that affects us all, helps one appreciate how people who deeply believe in justice can help perpetuate a racially unjust system. Defense attorneys must be conscious of this subversive force and develop strategies to counteract it if they are to achieve just outcomes for so many of their clients. Reflecting upon my own evolution as a public defender helps me understand the subtle ways the criminal justice system can shape our assumptions about race and crime.

It was the summer of 1993 when I first walked into Courtroom C-10. This was the basement courtroom of the Superior Court of the District of Columbia where arrestees were brought for "first -appearance hearings." It was where the accused would first see a judge, discover the charges made against him, and learn whether he would be released pending his next court date. There was no better place to learn first-hand who was likely to be arrested in Washington, DC.

I had just completed my first year of law school and was working as an intern investigator at the Public Defender Service (PDS). I had lived in Washington, DC for three years and knew the city was racially diverse. While there were certainly a larger percentage of African-Americans residing there than in the nation generally, there was *1001 still a significant white population. Although I had previous experience working in economically disadvantaged communities, and I understood the correlations between race and poverty, and poverty and crime, I expected to see a cross section of arrestees that more closely resembled the racial make-up of the city at large. I was surprised to see that every arrestee I saw that day was black.

But as I continued to work in DC's criminal justice system--for two more years as an intern and then as a public defender--my surprise morphed into acceptance. In fact, over time I found myself more surprised to see the occasional white defendant. When I did, I assumed there must be some extraordinary story behind the arrest. The image did not fit the narrative I was being socialized to accept: one in which criminality and skin color were inextricably intertwined.

I spent the next eleven years living in the corridors and courtrooms of that courthouse, and nine years since involved in indigent defense reform across the country. For the last six years, I have studied and taught criminal justice issues as a law school professor. I now understand that what I witnessed that day during the summer of 1993 was not anomalous; it was a snapshot of the harsh racial realities in our nation's criminal justice system. I also understand that my waning sensitivity to this reality is not unusual. Our justice system obviously punishes people of color disproportionately. Many well-intentioned people lose sight of that phenomenon and end up perpetuating it.

All across the country, African-Americans are disproportionately processed through a maze of courts and prisons. Individually, many are unable to overcome the many obstacles they experience every day. Collectively, they come from communities torn apart by these traumas. The national implications of a criminal justice system that so disproportionately impacts minorities, in a world divided along racial and socioeconomic lines, are alarming. Our criminal justice system has emerged as the greatest barrier to our most cherished American ideals: equal justice and equal opportunity for all.

And yet, I observed that so many of the professionals whose jobs ensured that the system functioned effectively were African-American. It was not uncommon to walk into a courtroom in which the judge, prosecutor, and defense counsel were all black. African-American police and probation officers frequently provided the evidence necessary to lock away the accused. And in Washington, DC, white professionals in the system were frequently progressive on issues of race outside the criminal justice context.

Puzzled by this situation, I frequently found myself wondering how so many people who presumably cared about racial justice could *1002 preside over such a system. I then began my own soul searching. Despite my commitment to my clients, did I harbor subconscious biases about them? Was I enabling the system by participating in it? Did I have an obligation to racial justice beyond the individual interests of my client? If so, what was my appropriate role? These are the questions I address in this article. It intends to initiate thoughtful discussions among defense attorneys about the impact of race in the criminal justice system and strategies that can be utilized to neutralize or mitigate such impact.

The remaining sections of this article will articulate the widespread problem that inspired it, specifically focusing on implicit racial biases that affect everyone, including those who are progressive on issues of race, as well as members of the same race that are experiencing the bias. The last two sections tackle the roles that criminal defense lawyers have within the justice system and suggest more ways in which defense attorneys can move beyond racially slanted judicial outcomes.

Section I provides critical foundation for the rest of the article. In it, I will explore the ways racial disparity is driven by virtually every aspect of the criminal justice system to show how prevalent this phenomenon is, and the driving need to combat it. In the second section I then look at the ways implicit racial bias works to explain how even well-intended people can actually facilitate the functioning of such an unjust system. Scholars have examined how this unconscious racial bias can cause decision-makers in the criminal justice system to unknowingly contribute to racist outcomes by skewing their perceptions of events that occur within the system. However, an area left relatively unexplored in these studies is the role of the criminal defense lawyer. In what ways might the defender inadvertently facilitate a racist system and is it possible for him or her to help mitigate such unjust outcomes? In the third section I will argue that a focus on systemic *1003 reform is consistent with the defender's singular obligation to the client, and that the conscientious, client-centered criminal defense lawyer can play a critical role in raising consciousness of the racism that plagues the criminal justice system and work to engender resistance to it. I further argue that by shining a light on the racism in the system, the defense attorney helps all of his or her clients, not just those who are of color. I argue that a racialized system is also a less humane system that enforces punitive policies that unfairly affect everyone accused of a crime. Finally, I suggest a three-prong strategy for the criminal defense lawyer working against our racialized criminal justice system that includes: 1) working to overcome his or her own racial biases, 2) developing strategies to educate others about their biases, and 3) continuing to focus on racial justice even when everyone else in the system seems to disregard it.

* * *

America is a country that has struggled mightily to overcome a troubling history of racism. Arguably, there is no institution in this country that provides a greater measure of our racial progress than our criminal justice system; for it is there that we decide matters of life and liberty. If we cannot make these critical decisions without regard to skin color, it is difficult to claim that we have conquered our racist legacy. Yet sadly, perhaps no feature of our criminal justice system defines it more than its racially disparate outcomes. That this can be true even as Americans come to accept more explicitly egalitarian views only speaks to the complexity of the problem and the power of the implicit racial biases we have been studying. For aspiring to promote color-blind outcomes is only the beginning. If we are to minimize racially disparate criminal justice outcomes, we must work to overcome the subconscious biases that drive them. While the defense lawyer owes allegiance to the individual client, and must not lose sight of this critical role, in the battle to eradicate racism in the system, defense lawyers can also play a pivotal role.

The first thing defense lawyers must do is become aware of their own implicit biases so that they may guard against them. As the personal anecdote at the beginning of the article reveals, systemic pressures *1048 can drive any of us to accept negative assumptions about race if we are not consciously guarding against them. The conscientious defense lawyer can then use many tools in his or her advocacy toolkit to begin to educate judges, jurors, and prosecutors about this phenomenon, as self-awareness is a first step towards combatting implicit biases. But, perhaps most importantly, the defender must recognize the intractable nature of the problem and avoid becoming discouraged and accepting the status quo. Progress will be incremental and there is value in resistance, even when the results are not obvious. For arguably nothing ensures that racist outcomes will persist more than when those charged with representing the accused stop pushing back against the forces of injustice.

Associate Professor, Atlanta's John Marshall Law School, and President/Founder, Gideon's Promise.