Kristin Henning (Georgetown) on "Race, Paternalism, and the Right to Counsel"...
The economic impact and redistributive effect of racially biased public defenders taking on paternalistic roles over their African American juvenile clients can be described in terms of asymmetrically distributed transaction costs and negative externalities, in that incarceration is unevenly and inequitably distributed amongst violating youths. Also, public defenders who operate under the myth of black inferiority reinforce asymmetrical market information about black people.
Professor Henning laments the prevalence of public defenders in juvenile cases who hold racial biases being expected to look out for the ‘best interests’ of their African American juvenile clients, instead of requiring zealous advocacy, strictly.
“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.”
“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.”
After defining implicit bias for her readers, Professor Henning directly confronts narratives that uphold the myth of black inferiority, particularly as it relates both to the behavior of parents and children:
“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.”
She “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.” -- DreSmith