Black on Black Representation
When it comes to combating structural racism, representation matters, and this is true for criminal defense as much as it is for mental health services and education. This Article calls for the expansion of the Sixth Amendment right to counsel of choice to indigent defendants and argues that such an expansion could be of particular benefit to indigent Black defendants. Extending choice to all indigent defendants reinforces the principles underlying the Sixth Amendment right to counsel and can help strengthen the attorney-client relationship. Because an expansion would grant defendants the autonomy to request counsel who they believe would best represent them, Black defendants who prioritize racial congruency and cultural competency may select Black counsel. Empowering indigent Black people to select, should they desire, Black and/or culturally competent public defenders has the potential to offer a range of benefits, including mitigating anti-Black racism in the criminal legal system.
Methodologically, this Article takes multiple approaches. First, it connects indigent representation to existing literature from other fields—clinical therapy and education—both of which recognize the benefits of racial congruency, to support the argument that Black public defenders may benefit Black clients. To explore how same-race representation functions in practice, this Article also relies on qualitative interviews with Black public defenders regarding communication and trust, factors that the American Bar Association identifies as integral to criminal defense. Together, these approaches highlight how expanding choice to indigent defendants might impact Black defendants, something that past choice of counsel literature does not examine. The Article concludes 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.