Vol. LVIII No. 2

The Racialization of Juvenile Justice and the Role of the Defense Attorney

Abstract: The existence of structural racism is not new. In fact, as the second decade of the twenty-first century comes to a close, there is evidence of a national political openness to acknowledging the phenomenon. This Article seizes upon this openness as it seeks to provide a fuller understanding of how structural racism operates within a branch of the criminal justice system that is often overlooked—the juvenile justice system. The Article offers a definition of racialization that acknowledges its multi-dimensional and fluid nature and the ways it is perpetuated via juvenile court rhetoric, processing, and procedure. It demonstrates how the racial bias that animates today’s juvenile justice system has deep echoes in its early history. The Article examines the harms of racialization and the impact of those harms on children charged with crimes, providing insight into how the construction of race operates within the system as well as how the system itself contributes to the construction of race. In turn, the Article shines a light on how young offenders, who are disproportionately children of color living in poverty, are perceived and understood within American society. The Article also explores the roles of the various actors within the system, focusing upon the juvenile defense attorney and the question of whether it is ethical to utilize racialized narratives during litigation, a discussion that illustrates the tension between two very different models of criminal defense. It analyzes the rules of professional ethics that address the potential conflict between a lawyer’s duty to her client and adherence to her own moral code, and it explores a middle ground that takes into account the unique challenges of defending adolescents charged with crimes. The Article argues that the harms of racialization should be confronted in the context of broader strategies for reform of the juvenile justice system. It considers the efficacy of implicit bias training for police officers and other court actors and proposes implementing practical safeguards that enable defense attorneys to inoculate against bias, rather than focus on the nearly impossible task of eradicating it. The Article concludes with a call to diversify the overwhelmingly white bench and bar in order to create a racially, and ethnically, heterogeneous court culture that emphasizes fair and impartial lawyering, no matter one’s role.

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