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May 3, 2016

"Do Public Defenders Spend Less Time on Black Clients?"

The question in the title of this post is the headline of this interesting new Marshall Project piece.  Here are excerpts (with a couple of key links highlighted):

[There is a] rising awareness among public defenders that they may harbor the same hidden biases about race and ethnicity that are frequently attributed to police and prosecutors.

A growing body of research has attempted to draw links between “implicit bias” — beliefs that unconsciously drive decisions and behavior — and the racial disparities that cut across every stage of the criminal justice system, from arrest to charge to incarceration to release.  One study found that black defendants in Connecticut had bail amounts 25 percent higher than comparable white defendants, and another found black defendants drew sentences 12 percent longer in federal courts.

Much of that research is focused on prosecutors, jurors, and judges, the triad that puts people away. But scholars are beginning to discuss how it also affects the work of public defenders, to the surprise of many. “I figured: we understand racism, we know our clients, we get it,” says Jeff Adachi, the elected public defender of San Francisco. But now Adachi is one of the converted, running twice-yearly all-day sessions for his staff in which they discuss how unconscious prejudices can sneak into their work. “It’s like waking up from a dream,” Jacobs recalled. Discovering research that correlated skin tone with the harshness of sentences “just made me sick.”  He remembered times in the past when he defended immigrants. “I’d think, well this case isn’t as important as that of an American kid. It was a feeling of, they’re just going to plead guilty so why should I bother?”

“[Bias] might manifest in whether the defender believes in the guilt or innocence of the person they’re representing,” says Phoebe Haddon, the chancellor of Rutgers University-Camden. “Or their assessment of their fellow counsel, the credibility of witnesses, whether to take a plea bargain.”

Haddon and the American Bar Association are developing videos to push judges, prosecutors, and defenders to discuss bias, and the first features a string of judges in a rare show of penitence.  William Missouri, a black retired circuit court judge from Maryland, says he studied his own sentencing patterns and found “I was biased against my own people.”  He looks stricken.  “Being accused of bias is like a knife slicing your skin; the cut may be shallow, but the hurt is deep.”

It goes beyond race: Cheryl Cesario, a former Chicago judge, admits that being Catholic meant that when a Catholic defendant came before her, “I would expect more from them.”

Data is scant, since multiple factors create sentencing disparities, but many defenders believe one of the main consequences of “implicit bias” is how much time they spend on cases. Their offices tend to be poorly funded and inundated with far more cases than they have time to handle. “They may expend more effort on cases in which they believe their client is factually innocent,” professors Song Richardson and Philip Atiba Goff wrote in a 2013 article for the Yale Law Journal [available here].

If they are interpreting “ambiguous evidence,” a “judgment of guilt may be cognitively easier to make because of the strong implicit association between blacks and crime.”  The surrender to implicit bias is exacerbated by stress, exhaustion, and speed — “exactly the context in which public defenders find themselves.”

The research is still mostly theoretical, and the concrete suggestions tend to be vague. The video for judges suggests that they try to be more humble, slow down their work, and do more self-examination. Videos and other materials for public defenders and prosecutors will be released by the American Bar Association later this year. The association encourages all lawyers to take the Implicit Association Test, an online tool developed at Harvard University [available here]. 

I have long considered implicit bias to be a huge issue in he operation of the criminal justice system, but I also think there are lots and lots of (not-quite-so-controversial) biases that impact the work of defense attorneys (both public and private). In particular, based on my own experiences and watching a lot of defense attorneys at work, I often see and surmise that the involvement of passionate family members and/or firends can have a potentially huge impact on how much time a defense attorney will spend on efforts to secure a better plea deal and/or develop more mitigation arguments at sentencing. For most overworked lawyers, squeaky-wheel clients will often get more grease; but criminal defense attorneys can grow a bit numb to their clients' squeaks. But I suspect when the squeaks are coming from a defendant's family and friends, especially if those "squeaks" are respectful and help identify sound mitigating matters, it can really impact defense efforts.

May 3, 2016 at 11:44 AM | Permalink


Unfortunately, this is high on speculation, low on facts. It may very well be true, but it's hard to quantify (particularly since many Public Defenders are not the best at keeping accurate time since there's no need to bill for that time). The theory that defense attorneys spend more time on cases they believe to be innocent may be true, but, in my experience, it's certainly not the first reason to spend more time. The complexity of the case and the chance of success are the biggest factors. Whether there's an offer accepted early on is probably a factor as well (since most attorneys aren't going to keep working on a case they want to resolve).

Posted by: Erik M | May 3, 2016 1:14:29 PM

For both sides -- prosecution and defense -- a significant part of the job is triage and risk assessment. This triage/assessment involves multiple factors: 1) how undisputable are the "facts"; 2) do the facts support an alternative theory of the case; 3) how serious is the offense; 4) does the defendant have any prior offenses (and what were those priors); 5) can any of the State's evidence be kept out of court? Based on this information, both sides attempt to guess at what is likely to happen at trial -- will the jury find the defendant guilty as charged, guilty of a lesser-offense, or not guilty -- and what the court is likely to do at sentencing (either after trial or on an open-plea). If both sides come to roughly the same conclusion, a plea bargain is likely and neither side will spend much time on the case. If both sides are too optimistic (the State seeing a higher sentence on a higher charge and the Defense seeing solid chances of a lower charge or even not guilty) -- or the Defendant is unwilling to accept counsel's advice -- a quick plea bargain becomes less likely and the two sides will ultimately spend more time on the case.

Unless a study has good controls (e.g., putting to the side "quick" pleas, taking into account the complexity of a case and the seriousness of the offense), it is likely to misstate whether race has a latent impact on the work done by defense attorneys.

Posted by: tmm | May 4, 2016 10:25:26 AM

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