NAPD 2024 We The Defenders - Detroit

If the defense community is to come to terms with racial injustice, we must also come to terms with the ways in which our work contributes to racial injustice.

Subtle harm is done in the standard practices of our day-to-day work. When we show up unannounced at the home of a Native witness, we deny that witness the common courtesies---requesting consent for a meeting and making an appointment----that we afford our friends and colleagues. When a white investigator arrives at the home of a Latinx family and asks to be let in, that investigator is wielding their whiteness to exercise power over the Latinx family, and undermining their sense of safety in their home. This may be unavoidable in some instances---for instance when dropping in on a government witness---but avoidable in others---perhaps when interviewing a friendly mitigation witness. In any case, teams should be including an analysis of their racial impact when deciding what tactics to employ.

Racism arises in our defense themes as well. When a mitigation narrative describes a Black defendant who was raised in a Black community, as living in a “gang ridden” neighborhood, “rife with violence and crime,” we pathologize the Black community while ignoring the deep historical racist structures that created those conditions. The racial disparities in the criminal-law system exacerbates the harm. When defenders pressure our client’s mother, who is likely to be Black or Brown, to testify at sentencing about her failings as a parent in front of an audience that is likely to be disproportionately white, we reinforce the belief that white people are entitled to sit in judgment of people of color. We may chose to employ these tactics, but might also lessen the racist impact by including in our narratives a discussion of the impact of historical and institutional racism.
There may or may not be valid reasons for the defense community to continue to engage in these tactics, despite the harm at they cause. But if we aspire to combat racism, and if we claim to fight for justice, we must examine our practices and consider whether they are worth the cost.