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Excerpted from: Kristin Henning, Race, Paternalism, and the Right to Counsel, 54 American Criminal Law Review 649 (Summer, 2017) (269 Footnotes) (Full Documen)t


kristinHenning02The right to counsel is a core component of justice for those accused of crime in the United States. In 1963 and 1967, respectively, the Warren Court guaranteed accused adults and youth the right to appointed counsel in two seminal cases, Gideon v. Wainwright and In re Gault. Decided during the heart of the Civil Rights era, both of these cases were implicitly--although not explicitly--concerned about the way black defendants were treated in the criminal and juvenile justice systems and served as an important legal corollary to the Civil Rights struggle against discrimination. In theory, defense attorneys became the heroes of justice, as they were called to stand in the gap between the coercive power of the state and the relatively limited power of the indigent accused, who were and still are disproportionately black and Latino.

Given this valiant legacy of indigent defense, it is disturbing to contemplate the possibility of racial bias in the criminal defense bar. It is even more jarring to think that black youth may be harmed today by the very people charged with protecting them. Yet, there is considerable evidence that defenders in contemporary American courts are, at best, complicit in the racial disparities and injustices that define the modern juvenile and criminal justice systems and, at worst, actively contribute to the harm imposed on black youth through implicit bias, colorblindness, benign neglect, and outright discrimination.

Recently, a few scholars have examined the impact of implicit racial bias on defenders in the adult criminal justice system. These scholars fear that defenders may be biased in their evaluation of evidence, consideration of plea recommendations, acceptance of punishments, and communications with their clients. There is every reason to believe that bias would affect juvenile defenders in the same ways and more. At every stage of the juvenile justice system, black youth penetrate deeper into the system at rates higher than we would expect based on their percentage of the national population. Black youth are disproportionately represented at arrest, detention, transfer to adult court, and incarceration in long-term facilities. This Article takes a hard look at the role defenders play in perpetuating racial disparities throughout the juvenile justice system.

Although 2017 marks the fiftieth anniversary of the Supreme Court's affirmation in Gault that children have a constitutionally protected right to counsel in delinquency cases, scholars and commentators have repeatedly questioned the meaningfulness of this right. Juvenile defenders, like defenders in the adult criminal justice system, are plagued with high caseloads, few resources, and systemic opposition to zealous advocacy. But juvenile defenders face an additional unique challenge--the challenge of paternalism, which threatens to deprive children of meaningful choice and voice in the delinquency system. In a legal system that routinely pursues the “best interest” of the child and expects children's advocates to do the same, juvenile defenders have long struggled to understand, accept, and fulfill their role as zealous advocates of their clients' stated interests. Although scholars and practitioners have made considerable progress in developing literature, standards, and training protocols that firmly delineate the defender's role as that of loyal, zealous advocate of the child's expressed interest, there is more work to do. As we continue to dismantle the deep hold of paternalism among juvenile defenders and champion client-directed advocacy as both an ethical mandate and constitutional right for children, we will benefit from understanding all of the root causes of paternalism. To that end, this Article explores the unique ways in which implicit racial bias contributes to paternalism and undermines zealous legal representation of children in the juvenile justice system.

Specifically, Part I defines “implicit racial bias” and briefly reviews evidence of implicit bias in the juvenile and criminal justice systems, paying particular attention to bias among defenders.

Part II considers the long and deep history of paternalism in children's advocacy and demonstrates how paternalism makes defenders particularly vulnerable to implicit racial bias. This Part highlights harmful narratives about black parents in the child welfare system and considers the ways in which bias distorts the attorney-child relationship, leads defenders to discount the child's stated preferences, and undermines the attorney's advocacy at every stage of a delinquency case.

Part III considers the legal implications of implicit bias on the child's right to counsel in delinquency cases and examines the practical implications of bias on the successful rehabilitation of children in the juvenile justice system.

Part IV identifies strategies to reduce implicit racial bias among defenders and empowers defenders to raise racial justice arguments and develop affirming counter-narratives to replace stereotypically negative images of black children and their families in juvenile cases.

Part V concludes that loyal, client-directed representation is not only essential to the child's right to counsel but may also be one of the greatest safeguards against the harmful effects of implicit racial bias.

. . .

It is daunting to contemplate racial bias among criminal defense attorneys--the very people assigned to protect the accused from state coercion and racial injustice. Yet, the reality is that defenders may either actively perpetuate injustice through their own implicit racial bias or passively accept it through color blindness, benign neglect, or their failure to address inequities head on. Juvenile defenders may be even more vulnerable to the negative effects of implicit bias as they practice in a paternalistic system that is easily manipulated by perceptions of race and class. This Article introduces defenders to the definition of implicit racial bias and helps them identify bias in their own practice. Fortunately, with adequate training and motivation, defenders can ameliorate their own bias and improve their attorney-client relationships and advocacy on behalf of children. To that end, this Article examines several empirically-validated strategies to reduce implicit racial bias and translates them into concrete, practical tools for lawyers representing youth in juvenile and criminal proceedings. Applying the guidance offered herein, lawyers learn to regulate their own emotions and assumptions in their interactions with clients, avoid racially-induced microaggressions in their offices and individual practice, resist harmful narratives about youth and families of color, and become mindful of the impact of race on every decision in the juvenile and criminal justice systems. Most importantly, this Article insists upon loyal, client-directed legal advocacy as one the greatest safeguards against the harmful effects of implicit bias. As defenders confront bias in their own advocacy, hopefully they will also be outraged by the myriad of obvious and subtle racial injustices in the system as a whole and motivated to challenge them head on.

Professor Kristin Henning is the Agnes N. Williams Research Professor of Law and Director of the Juvenile Justice Clinic at Georgetown Law.