Academic journal article Texas Law Review

Burdening the Least of Us: "Race-Conscious" Ethics in Criminal Defense

Academic journal article Texas Law Review

Burdening the Least of Us: "Race-Conscious" Ethics in Criminal Defense

Article excerpt


At the risk of sounding like an advocate who is engaged in a "practical vocation of limited jurisprudential respectability,"1 is hostile to theory,2 cares more about outcomes than anything else,3 and otherwise has a "crabbed notion" of criminal defense lawyering,4 when I read Anthony Alfieri's recent work on "race-conscious"5 ethics in criminal law practice, I cannot help recalling a favorite scene from Woody Allen's masterpiece, Annie Hall.6 In the film, Allen and costar Diane Keaton are waiting in line at a movie theater, the unwitting captives of an insufferably pompous fellow moviegoer, who is pontificating about the work of media critic Marshall McLuhan. Suddenly, from out of nowhere, a fantasy fulfilled, Marshall McLuhan himself appears and dismisses the know-it-all with one scathing sentence: "You know nothing of my work."7

Although I do not mean to suggest that those who do not practice criminal law have nothing to offer the growing body of scholarship devoted to criminal defense ethics,8 I do mean to say that there is something exceptionally burdensome about lawyering on behalf of the accused9-most of whom are poor10--and those who comment on it should know something of this unique burden.11 If the commentator cannot reflect on actual experience,12 he or she should at least make a studied effort to obtain a practical understanding, or, as Alfieri would put it, a "contextualized reflection"13 of criminal lawyering.

For those of us who devote ourselves to defending the poor accused,14 the most difficult aspect of Alfieri's work is the suggestion that it is the criminal defense lawyer who is responsible for the persistence of racism and racial stereotypes in the criminal justice system and larger American society.15 Of all the political and institutional actors upon whom Alfieri might focus, why us? We did not create the laws calling for greater punishment for poor, black lawbreakers,16 which have led to the virtual banishment of young African-American men from society.17 We are not behind the record pace of incarceration,18 prison construction,19 or capital punishment,20 all of which have had a disproportionate impact on racial minorities and the poor.21 We do not have the power to decide whom to prosecute or what charge to bring,22 nor do we have the power to determine guilt or innocence,23 or to formulate a sentence,24 all of which contribute to the institutional and social status of racial minorities in this country.25

Frankly, the only time defense attorneys are depicted as powerful is when we are being taken to task for adhering to the central ethical mandate for criminal lawyers: the requirement of zealous advocacy.26 Alfieri is not the first progressive scholar to jump on this heretofore conservative bandwagon.27 When criminal lawyers heed the words of Lord Brougham-to have as their "first and only duty" to "save th[e] client by all means and expedients, and at all hazards and costs to other persons"28-we are suddenly in trouble because we are not thinking about these "other persons," the broader community.29

The additional burden that Alfieri would place on criminal defense lawyers through his notion of "race-conscious responsibility"30-to be more "community-centered,"31 and more, to embrace a "color-conscious, pluralist approach to advocacy that honors the integrity of diverse individual and collective racial identities without sacrificing effective representation"32-is so untenable as to be laughable. "Nice work if you can get it, "33 but who can possibly get it?

Alfieri wants to completely transform criminal defense lawyers from defenders of individuals accused of crime, a difficult enough enterprise, to protectors of the community.34 He wants to transform the relationship of the defense lawyer to client from one of unmitigated devotion35 to a sort of tempered fondness, provided this fondness does not get in the way of Alfieri's formulation of racially sensitive lawyering. …

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