This post is part of a symposium that highlights how law school clinics can disrupt the infrastructure of racial capitalism. Read the rest of the posts here.
Teaching an experiential course focused on criminal defense often makes it difficult to stretch students beyond a traditional, binary way of thinking about and practicing law. The criminal legal system functions by separating acts of harm and violence into two opposed sides—“perpetrator” and “victim”—and lining up legal workers to vindicate one side’s rights to the exclusion of the other. This puts forth a scarcity model of justice, in which attending to harm is a zero-sum game. If an accused person has experienced past harm and trauma, a defense attorney can use that to mitigate the alleged offense, often to the exclusion of meeting the needs of the victim. And if the victim succeeds in conveying the harm they have experienced—then the needs of the person accused often go unaddressed.
I have found it difficult to structure my clinic in a way that encourages students to think beyond this binary, scarcity model. As a former public defender, I was never encouraged to think about victims. On the contrary, in my practice, water cooler chatter often involved making fun of victims, minimizing the harm that they experienced, and smearing their credibility. While zealous advocacy and ethical obligations to our clients may require defense attorneys to do some of these things in court, that does not mean that in our approach to our work as human beings we cannot hold multiple truths.
There are so many truths that go unacknowledged in this system. The truth that some victims do not want the accused person to be punished, no matter how egregious the harm. The truth that some people charged with crimes feel so overwhelmingly terrible about the harm they have caused—and they have no outlet via which to express this. The truth that these two “sides” are often from the same community, and at different moments in time can both experience harm and cause harm. As an experiential professor, I want my students to engage all of these truths—so as to develop an approach that is more fully human and allows them to think about solutions holistically.
This past fall, in a moment of self-reflection, I recognized that while I teach an entire January term course on restorative and transformative justice, in which students are pushed to think about harm in a holistic manner, I had never integrated this perspective into my experiential course. Restorative and transformative justice are victim-centered approaches that ask us to collectively define and be responsible for accountability and healing without resorting to punitive practices. The needs of those who have experienced harm in a particular incident are placed at the center and the needs of those who caused a particular harm are also identified and addressed.
When introducing this perspective to the students in my practicum, I assigned the following activity. With their practicum partner, I asked them to think about the person(s) harmed in the case they were working on. I asked them to focus on the following questions: Who was harmed in this case? How were they harmed by what occurred? What might they have needed in the immediate aftermath of the incident and what might they need now? Who might be able to meet those needs? In contrast to our work together until this point, which had been focused on the harms their clients had experienced—through court processes and pretrial incarceration—the purpose of this activity was to focus their attention on harms more broadly.
After the students had finished discussing these questions with their partner, I asked the students to raise their hands if this was their first time thinking about the impact of the incident on the people who were harmed by their client’s actions. Every student raised their hand. At this point in the semester, students had been working with their clients for at least six weeks and thus were familiar with the client and their families. They were connected to their clients’ life stories and invested in their pretrial freedom. Knowing all of this, I was still shocked that not one of them had previously thought about the person(s) harmed in their case. It is imperative that part of their training include thinking through the real and tangible harms on “both sides” of the system.
Ignoring the harm caused when one is on the side of the accused also narrows the possibilities of the interactions one has with clients. If a client caused someone harm, it is part of a fully human experience to be able to show remorse, feel shame and regret, and make amends. While not every client will want to confront these feelings, many can and do. In fact, after the preliminary hearing in one of our cases, where a complaining witness testified in a burglary case, our client, after listening to the testimony, spoke out in open court to tell the witness, “I’m sorry.” For many defense attorneys, knowing the repercussions that such an admission could have, the moment would cause us to cringe.
And yet, people who have caused harm should have the opportunity to express these emotions. I ask my students, what do you do when your client tells you they feel bad about what they did? Is it part of your job to engage in this conversation with them? Or do you just move on to the next legal theory that you need to discuss with them? I remind them that a client’s lawyer is the only person to whom they can legally express these feelings without an admission of guilt being used against them. What, then, is our role in helping clients grapple with this completely human range of emotions?
Legal education does not equip us to have these kinds of conversations. Criminal defense training often points students toward seeking out mitigation for their clients in the form of their own experiences of trauma and other facts and evidence that minimize culpability. It is rare, other than perhaps when we talk about sentencing, or parole hearing advocacy, that we talk about the place of true remorse. Even then, it is unlikely that legal advocates truly sit with their clients to listen to the remorse they feel or to provide resources for them to process this remorse. A binary thinking approach does not allow for this opening because a client’s own experiences of harm take center stage.
The criminal legal system continues to impede an expansive and liberatory approach to justice by encouraging this form of binary thinking. And in teaching criminal defense, we too can often fall into the trap of reproducing this binary. If we wish to train our future public defender students to think holistically about justice, we must encourage them to understand the plethora of harms of the criminal legal system and the multiple truths that exist within all those who encounter it. This inevitably causes discomfort within our students because it makes them pause to question their role in perpetuating this binary thinking. But in some ways, this must be the goal—to make all of us so uncomfortable in these roles that there is no other option but to work towards dismantling the system and breaking free.