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February 14, 2021

"Black on Black Representation"

The title of this post is the title of this new article authored by Alexis Hoag now availble via SSRN.  Here is its abstract:

When it comes to combatting structural racism, representation matters, and this is true for criminal defense as much as it is for health services, education, and civil legal services.  This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants, and argues that such an expansion could be of particular benefit to indigent Black defendants.  Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship.  Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.

Methodologically, this Article takes multiple approaches.  First, it connects indigent representation to existing literature from other fields — clinical therapy and education — both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients.  To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust; factors that the American Bar Association identifies as integral to criminal defense.  Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine.  The Article concludes that recruiting more Black public defenders and training culturally competent lawyers are critical next steps regardless of whether the Court expands the right to counsel of choice to poor people.

February 14, 2021 at 08:38 PM | Permalink


I am a defense lawyer. Will the same folks who support these efforts be OK when white defendants demand white lawyers?

Posted by: Scott | Feb 14, 2021 9:50:38 PM

I am a former public defender and the article's author. Scott: your query is addressed in the article. Extending choice to all indigent defendants empowers them to select the lawyer that they believe will best represent them. Demand for a new lawyer triggers a good cause inquiry from the court. Depending on the defendant's articulated reason for exercising choice, the court may not approve it. And practically speaking, the defense bar (and the legal profession) are overwhelmingly white, so there's a high likelihood that a white defendant will initially receive a white lawyer. Happy to engage further. You can find my contact info on SSRN.

Posted by: Alexis | Feb 15, 2021 9:10:09 AM

There is no such thing as structural racism so this paper should have been rejected at the first sentence.

Posted by: restless94110 | Feb 15, 2021 11:13:22 AM

As a current law student training to become a public defender, I find it disappointing that these views are so common within both the academy and among public defenders. I wish the author had interviewed more clients in addition to public defenders. I've been in the audience for many, many interviews with formerly incarcerated individuals, and they are very frequently asked this question of whether the race of their lawyer presented a barrier to communication or trust or any other aspect of effective representation. It's almost as if the questioners are desperate to hear them say "yes" so that they can be confirmed in their pessimistic views on the possibility of interracial communication and trust. I can't recall an interviewee having ever said yes. Every single time, they say that what matters to them is an attorney who will listen and fight for them, not one who is of their race. The only identity-based reservations I can remember is one interviewee who expressed reluctance to be represented by a woman, although those reservations were, according to the interviewee, quickly overcome by seeing that their attorney represented them zealously.

I can see the value of an expanded right to choose one's own counsel. But I don't see any value in rooting that right in the supposed difficulty of a non-black attorney representing a black client, at least on the scant evidence from other fields presented in this article. And I find it pretty discouraging that a law professor thinks that her white students, if they become public defenders, can't be as good at their job as their black classmates, purely by virtue of their race. Relying on "racial congruence" to build an attorney-client relationship is neither necessary nor sufficient. People have all sorts of different experiences, whether they're attorneys or clients, black or white. Just as it's not impossible for a white attorney to build a relationship of trust and understanding with a black client, a black attorney will fail to build that relationship with a black client if they fail to do the work. All attorneys must learn to listen to their clients, build trust, fight zealously, and keep their word. When attorneys fail to perform those duties, I think clients should have a right to ask for someone who can. But crediting a desire for a different attorney based on race alone demeans everyone involved. Prioritizing same race representation is not "critical." It is harmful.

Posted by: Aspiring | Feb 17, 2021 8:23:16 PM

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