New practical guide for anti-racist lawyering

Making Black Lives Matter in the Criminal Justice System

The Howard League has developed a practical guide for antiracist lawyers, in association with Black Protest Legal Support and in consultation with an expert advisory group including Aika Stephenson, Legal Director at Just for Kids Law. The guide is designed to support lawyers to be antiracist at each phase of a client’s journey through the criminal justice system: at the police station, at court and after court. While the guide is designed for lawyers who represent clients of all ages, it may be particularly relevant for practitioners representing children.

Details

Though report after report has underlined the overrepresentation of Black people at every stage of the criminal justice system, little has changed. Until lawyers learn to actively challenge discrimination in their day-to-day work, Black people will continue to experience punitive treatment and worse outcomes at the police station, at court and after sentencing.

This guide is inspired by two harsh realities that must be addressed: racial discrimination as an enduring feature of criminal justice for Black people; and legal training in England and Wales that does not equip lawyers to be antiracist. Without taking the initiative to learn about and challenge the racism inherent in our justice and social systems, criminal law practitioners can become complicit in it.

The guide recognises that discrimination in the criminal justice system does not exist in isolation: it is situated within the broader context of structural racism, including the disadvantage which Black people experience in housing, education, employment and health. The first section of the guide describes how racialised social structures lead to accumulated disadvantage for Black people, both within and outside of the criminal justice system. The following sections are designed to support lawyers to be antiracist at each phase of a client’s journey through the system, offering practical step-by-step advice and case studies.

At the police station, Black people – and particularly young, working-class Black men – are more likely to have experienced coercive and punitive policing. Lawyers need to recognise that past experiences with the police can shape clients’ perceptions of the criminal justice system and should never blame clients for their justified distrust of it. Lawyers should be prepared to support clients who have experienced violence from police and to question discriminatory police evidence.

At court, Black people are subjected to more punitive remand and sentencing decisions than white people, often in courtrooms where racialised evidence is accepted as fact and Black people’s lived experience is ignored. Throughout the system, the risks supposedly posed by Black people are emphasised and sometimes imagined, while their vulnerabilities and unmet needs are overlooked. Lawyers can counter this by gathering information about the vulnerabilities experienced by Black clients. Lawyers should pay close attention to any evidence of bias during a trial, to inform any grounds of appeal.

After sentencing, Black people continue to experience worse outcomes, whether they have been sent to prison or given a community sentence. Lawyers should provide practical and emotional support which recognises how difficult and frustrating the trial may have been. Lawyers should also acknowledge that Black clients may experience discrimination from probation or prison and advise them about how to respond to this.

Above all, the guide reminds practitioners of the need to listen closely and carefully to what Black clients have to say about their own experiences, and to recognise that much more needs to be done to create a legal system that is antiracist.

Commentary

“This guide is so important in the movement for Black lives because to effectively support the liberation of oppressed communities, more members of the legal profession need to liberate themselves from the constraints imposed by traditional legal training and use their practice to build community power.” Ife Thompson, founder of Black Protest Legal Support and future pupil barrister at 1MCB

“The Howard League sees the most acute manifestation of discrimination in its legal work for young people in prison: in November 2020, one in three children in prison were Black.  It is hoped this guide will go some way to helping practitioners to counter this trend by tackling racism at every stage of the process.” Dr Laura Janes, Legal Director, the Howard League for Penal Reform

The guide describes the disadvantage and discrimination which is experienced by Black children and offers advice about how lawyers can counter it. Throughout the guide, readers follow the story of a 17-year-old Black boy and learn what it would mean to provide antiracist advice and representation in his case.

Compared to white children, Black children are more likely to be excluded from school, to grow up in persistent poverty, and to be perceived as risky rather than vulnerable. Alongside (and as one expression of) this structural disadvantage, Black children are subject to ‘adultification’. This means that professionals perceive and treat them as if they are much older. As a result, Black children can receive less care and protection than their white counterparts.

The guide empowers lawyers to challenge the adultification of Black children and other discriminatory assumptions such as discriminatory narratives about a Black child’s participation in drill music or silence in a police interview.