Abstract

Excerpted From: Alexis Hoag, Black on Black Representation, 96 New York University Law Review 1493 (November, 2021) (308 Footnotes) (Full Document)

In interpreting the Sixth Amendment's assistance of counsel provision, the United States Supreme Court recognized multiple rights, including the right to counsel, the right to conflict free counsel, the right to effective counsel, the right to represent oneself, and the right to counsel of choice. However, the Court's Sixth Amendment jurisprudence limits only one of these rights based on an individual's ability to afford representation: the right to counsel of choice. The Court has repeatedly recognized that the right to counsel of choice “does not go beyond 'the individual's right to spend [their] own money to obtain the advice and assistance of ... counsel.”’ According to the jurisprudence, an indigent person's right to counsel is satisfied so long as appointed counsel is competent and capable of rendering adequate services. Thus, if an indigent person is dissatisfied with counsel for some reason, unless counsel is incompetent or their conduct is constitutionally ineffective, the individual has no other options. In short, beggars can't be choosers.

The Court's income-based distinction in counsel of choice cases does not comport with the principles underlying the Sixth Amendment. Autonomy, which cuts across income levels, is one such principle. For instance, the Court recognized that “a defendant must be allowed to make [their] own choices about the proper way to protect [their] own liberty.” This should include the selection of counsel, as defense counsel is central to protecting a person's liberty interests in the face of criminal charges. Similarly, in McCoy v. Louisiana, the Court reaffirmed that the defendant has the “right to make the fundamental choices about [their] own defense.”

Central to representation is a trusting relationship. As Justice Brennan explained, “crucial decisions ... can best be made, and counsel's duties most effectively discharged, if the attorney and the defendant have a relationship characterized by trust and confidence.” An attorney-client relationship lacking trust can be corrosive to representation and amount to the denial of counsel. Yet, where a relationship of trust between counsel and the defendant is paramount to effective representation, an indigent defendant can only hope for a trusting, communicative relationship with appointed counsel. In instances where trust fails to form and a breakdown in communication occurs, indigent defendants run the risk of being stuck with what they could not pay for.

Differences in race, ethnicity, and culture between counsel and an indigent defendant can create barriers to relationship building, communication, and trust formation. It is at this junction--the right to counsel of choice and race--where this Article resides. This Article calls for the Court to expand the Sixth Amendment right to counsel of choice to indigent people and argues that the expansion could be of particular benefit to Black indigent defendants.

Black people are overrepresented in the criminal legal system, the majority of whom are indigent and qualify for public defenders or appointed counsel. Given the lack of racial diversity in the legal profession, the system overwhelmingly appoints white lawyers to represent indigent Black clients. For instance, over 70% of assistant federal public defenders are white, with white men making up the largest subgroup at 40.5%; among Criminal Justice Act attorneys who federal courts appoint to represent indigent defendants, approximately 80% are white. The existence of anti-Black bias among defense counsel is well-documented. Anti-Black bias in the attorney-client relationship can lead to distrust and misunderstanding, corrode representation, and further reinforce anti-Black racism within the criminal legal system. In one study exploring bias in the legal system, the authors mused: “If police, prosecutors, jurors, judges, and defense attorneys all harbor anti-[B]lack preferences, then the system would appear to have limited safeguards to protect [B]lack defendants from bias.”

As a solution, this Article calls for the expansion of the Sixth Amendment right to counsel of choice for all indigent defendants. Extending choice to indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Given the focus of this Article, the expansion would also grant a defendant the autonomy to request counsel who shares their race and/or to select culturally competent counsel if they believed that lawyer could best represent them. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders also has the potential to help mitigate anti-Black racism in the criminal legal system. Current choice of counsel literature does not explore the impact an expansion could have on indigent Black defendants, nor does indigent defense literature address the potential benefits of racial congruency in representation.

Black lawyers often have the experiential knowledge of what it is like to move through the world with the social meaning attached to Blackness and thus, firsthand knowledge of the corresponding treatment and dangers. I call this “embodied empathy.” As a result, many Black public defenders have a greater ability to understand and empathize with the stressors and circumstances that resulted in the criminal charges their clients face, and to recognize the humanity in their clients. This embodied empathy enables many Black defenders to build rapport more readily with their clients and to establish trust, both of which can contribute to improved representation. Constitutionally effective representation depends upon a trusting attorney-client relationship. And as this Article demonstrates, Black clients tend to form a more trusting relationship with Black counsel given the shared social meaning assigned to race in this country.

Although indigent defendants from other non-dominant ethnicities and cultures can benefit from culturally competent representation, this Article focuses on the potential impact expanding counsel of choice may have on indigent Black people facing criminal charges. The overrepresentation of Black people in the criminal legal system reflects longstanding structural racism born from slavery and the racial hierarchy that resulted. It also stems from the strength of anti-Black bias that stereotypes Black people as dangerous and criminal. These stereotypes are direct descendants of slavery, which produced a racialized caste system. In her book, Caste, journalist Isabel Wilkerson explains: “What people look like, or, rather, the race they have been assigned or are perceived to belong to, is the visible cue to their caste.” The public then relies on caste as an “historic flash card” to determine “how [people] are to be treated, where they are expected to live, ... [and] whether they may be shot by authorities with impunity.” Historian Khalil Muhammad calls it “racial criminalization: the stigmatization of crime as '[B]lack”’ while simultaneously“masking ... crime among whites as individual failure.” Studies show that police stop and question Black people at higher rates; prosecutors file more serious charges when the suspect is Black and the victim is white; defense attorneys are more likely to recommend plea bargains for Black clients that impose longer sentences than those they would recommend for similarly situated white clients; and judges and juries impermissibly consider race when determining whether to convict and what sentence to impose.

Foundationally, to support the argument that Black public defenders can offer potential benefits to Black clients, this Article relies on existing literature from other fields--clinical therapy and education--both of which recognize the benefits of same-race representation. To explore how same-race representation functions in practice, this Article relies on interviews with Black public defenders regarding communication and trust that the American Bar Association identifies as integral to criminal representation.

Existing choice of counsel scholarship does not examine how expanding choice to indigent defendants might impact Black defendants. Most of the literature questions the appropriateness and legality of an income-based distinction, and, based on different theories, argues that the Court should extend choice to indigent people. For instance, thirty years ago, David Friedman and Stephen Schulhofer argued that extending the right would likely improve the attorney-client relationship, both because the client would be able to exercise agency and the lawyer would have “a self-interested reason to value the satisfaction of his client.” Although this Article agrees that extending choice could improve representation, it takes the analysis a step further by elevating the importance of the attorney-client relationship when examining the doctrine. It also argues that extending choice may be particularly beneficial to indigent Black defendants should they choose a Black and/or culturally competent lawyer. In those instances, there is potential to mitigate anti-Black racism in the system. Conversely, existing scholarship makes brief mention of how race may impact the attorney-client relationship and representation.

This Article proceeds as follows. Part I examines the history and principles underlying the Sixth Amendment right to counsel, which are tied to Black people and indigency, arguing that the Court must extend the right to counsel of choice to make good on the constitutional guarantee. Part II asserts that representation matters, exploring same-race relationships in clinical therapy and education to provide a framework for advancing Black on Black representation in indigent defense. Part III defines embodied empathy, the unspoken familiarity among Black people given their shared experience with the social meanings assigned to race. Through firsthand accounts from Black public defenders, Part IV explores how Black on Black representation can impact the formation of the attorney-client relationship, including the quality of communication and the development of trust. This Part also argues that same-race representation may help mitigate anti-Black racism in the criminal legal system and identifies some of the limitations of same-race representation. The Article concludes with a recommendation 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 people who qualify for appointed counsel.

[. . .]

Regardless of whether the Court extends the right to counsel of choice to indigent defendants, perhaps benefiting Black defendants, there is still a dearth of Black public defenders. The arguments in this Article require indigent defense providers to prioritize recruiting more Black lawyers and instituting cultural competency training to ensure that all lawyers can provide effective cross-cultural representation. Such training is largely absent from many public defender offices. However, these priorities cannot start in practice. Law schools have an obligation to prioritize diversity in the profession and to prepare students for practice. Although cross-cultural lawyering has long been promoted in clinical legal education, many law students graduate without ever having enrolled in a clinic. Moreover, the relevant doctrinal courses--criminal law, criminal procedure, and evidence--fail to adequately prepare students for client-facing work. In these ways, improving the representation options for Black indigent defendants will ultimately improve representation for all indigent defendants.

Alexis Hoag, Assistant Professor of Law, Brooklyn Law School.