Implicit Racial Bias in Public Defender Triage
Author: RICHARDSON, L. SONG1 GOFF, PHILLIP ATIBA2
Richardson, L.Song, and Phillip Atiba Goff. “Implicit Racial Bias in Public Defender Triage.” Yale Law Journal, vol. 122, no. 8, June 2013, pp. 2626–49. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=aph&AN=88990949&site=ehost-live.
Abstract: Despite the promise of Gideon, providing "the guiding hand of counsel" to indigent defendants remains unmanageable, largely because the nation's public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments; they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decision-making due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.
Introduction: As we commemorate the fiftieth anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, there is little doubt that its promise to provide "the guiding hand of counsel" to indigent defendants remains largely unrealized.* There are many reasons for this, including the lack of political will to fulfill Gideon's promise by guaranteeing adequate funding and imposing caseload limits, Although some jurisdictions created public defender (PD) offices to meet the demand for services, attorneys in the majority of these offices handle cases well over the maximum recommended limit. Scholars rightly bemoan the current state of indigent defense. However, insufficient attention has been paid to the fact that, until much-needed changes in the provision of indigent defense services occur, PDs will engage in triage, the process of prioritizing cases for attention. This reality raises important questions about how to guide attorney decision-making in order to avoid ad hoc judgments. We focus on state PDs rather than on assigned counsel and contract systems because state PD offices handle the majority of indigent cases in state criminal proceedings. Almost no attention has been paid to the effects that unconscious, i.e., implicit, biases may have on PD decisionmaking.^ This is surprising because over three decades of well-established social science research demonstrates that these biases are ubiquitous and can influence judgments, especially when information deficits exist. Worse, these biases are likely to be particularly influential in circumstances where time is limited, individuals are cognitively taxed, and decision-making is highly discretionary — exactly the context in which PDs find themselves. Thus, the domain of PDs and triage presents a rare confluence of factors ripe for the influence of implicit biases (IBs) and consequently deserves far more scholarly treatment than it has received. We argue that it is critical to consider the probable effects of IBs on PD decision-making because zealous and effective advocacy is a scarce resource in the current environment. Thus, the distribution of this resource should not be based on unconscious judgments tied to a defendant's race. In the Parts that follow, we consider how IBs may affect PD decision-making and end with some suggestions for safeguarding against their influence.
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the need for them to triage and decide which cases deserve the most attention also comes with the consequences of missing important details that can cause punishment for those being convicted.
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