Jim Crow Ethics and the Defense of the Jena Six

• Author: Anthony V. Alfieri
• Position: Professor of Law and Director, Center for Ethics and Public Service, University of Miami School of Law.
• Pages: 05

Professor of Law and Director, Center for Ethics and Public Service, University of Miami School of Law.

For their comments and support, I am grateful to David Baldus, Mario Barnes, Charlton Copeland, Zanita Fenton, Adrian Barker Grant-Alfieri, Amelia Hope Grant-Alfieri, Ellen Grant, Patrick Gudridge, Osamudia James, JoNel Newman, Angela Onwuachi-Willig, Bernie Perlmutter, Stephen Urice, Frank Valdes, Gerald Wetlaufer, Kele Williams, and the participants in the The University of Iowa College of Law's Critical Race Theory Speaker Series and faculty workshop.

I also wish to thank Robin Schard, Freddy Funes, Mia Goldhagen, Karen Shafrir, Kara Strochlic, and the University of Miami School of Law library staff for their research assistance, and Joseph Daniels, Matthew Hoffman, and the editors of the Iowa Law Review for their commitment to the theory and practice of race.

"Remember/The days of bondage"¹

Page 1654

I Introduction

"The hungry wretched thing you are today."²

This Article revisits the legal-political controversy surrounding the 2006 prosecution of the Jena Six in LaSalle Parish, Louisiana. In a prior work, I investigated the racial norms animating the Jena Six prosecution, a set of norms I called Jim Crow legal ethics.³ By Jim Crow legal ethics, I mean the professional norms of practice under de jure and de facto conditions of racial segregation. ⁴ The interwoven product of law, culture, and society, the norms condone and oftentimes encourage coded claims of race-based identity. Race-coded claims advert to both mutable and immutable characteristics in describing individuals, groups, and communities. Mutable traits pertain to the changeable elements of an individual's legal personality, for example, education, geography, or socioeconomic status. Immutable qualities refer to the more constant properties of an individual's legal personality, for example, accent, skin color, or disability. For lawyers working within the criminal-justice system in a time of de jure or facto segregation, race-coded claims shape the image⁵ and story⁶ of offenders, victims, and affected communities. Page 1655

In previous work investigating the role of race, lawyers, and ethics in the American criminal-justice system, I examined the identity-making practices of prosecutors⁷ and defenders⁸ in cases of racially motivated violence. This Article extends that project by exploring race-based, identity-making practices in the law, lawyering, and ethics of noose cases. By noose cases, I mean civil and criminal cases arising out of noose-related conduct motivated by bias or prejudice and intended to harass, intimidate, or terrorize particular individuals, groups, or communities. ⁹ The goal of this exploration is to craft alternative civil-rights and criminal-justice approaches to noose-related incidents of racial violence.

Traditionally, prosecutors, defenders, and civil-rights lawyers have overlooked "outsider" theories of difference-based identity in representing offenders, victims, and offender or victim communities. Outsider theories provide cultural, political, and socioeconomic accounts of the inequitable, difference-based treatment of minority communities in American law.10 Identity, embedded in the cultural, legal, and social norms and narratives of difference, resonates throughout the diverse minority communities served by prosecutors, defenders, and civil-rights groups. The prosecution and defense of noose cases illuminate the professional norms, practice traditions, and ethics rules governing the fields of civil rights and criminal justice and, more specifically, accentuate the particularized role of lawyers in Page 1656 constructing the meaning of racial violence and the noose in law, culture, and society. ¹¹

Like the initial prosecution mounted against the Jena Six by LaSalle Parish District Attorney Reed Walters, the defense of the Jena Six implicates the sociolegal norms and narratives of racial identity. Rooted in the conscious¹² and unconscious¹³ racism of Jim Crow practices, the norms and narratives construct the identity¹⁴ and history¹⁵ of black offenders and black communities. ¹⁶ Frequently, contemporary defense narratives in race cases will construct black-offender identity through the familiar tropes of "rotten social background,"¹⁷ "black rage,"¹⁸ and "white fear,"¹⁹ or related Page 1657 "cultural"²⁰ and "syndrome"²¹ attributions. Rather than rehearse the shared form and substance of these implicit race-coded claims, this Article addresses a more explicit and provocative claim: that of the "natural" criminal pathology of black male offenders. Forged in a time of de jure and Page 1658 de facto racial segregation, this claim informs what I will call the antebellum defense.

Akin to other race-based defenses, the antebellum defense offers coded narratives to diminish the mental capacity and moral character of black offenders and their communities. At trial, the defense serves as an excuse. At sentencing, it supplies evidence of mitigation or grounds for mercy. In the Jena Six case and other black-on-white cases of racial violence, it permits criminal-defense lawyers to excuse black male lawbreaking for reasons of "innate" criminal character instead of environmental deprivation, cultural deviance, or historical oppression. The question in this case and cases elsewhere is not whether the defense is ethically permissible or strategically instrumental, but whether it is morally acceptable.

Here, in fact, the antebellum defense is omitted in favor of colorblind and race-coded defenses asserted at successive trial and post-conviction proceedings. The absence of the defense, however, is a function of strategic considerations relevant to the past and future actions of an unsympathetic white prosecutor, an intolerant white judge, and an all-white jury, and the higher consequent risk of retributive punishment, rather than a scarcity of "facts" pertaining to potential claims of offender criminal pathology. Whether authentic or pretextual, bad-character or criminal-pathology claims are almost always available in defending young black male lawbreakers. In the adversary system of criminal-justice advocacy, the presence or absence of such claims turns on strategic calculation, not ethical constraint.

To evaluate the moral import of the antebellum defense for the Jena Six specifically and for young black male lawbreakers more generally, this Article turns to David Luban's recent writings on legal ethics and human dignity. ²² Luban links lawyers to the preservation of client dignity in the advocacy relationships molded by law, legal agents, and sociolegal institutions. ²³ Winnowing out the professional norms of advocacy, he provides a naturalized account of legal ethics and lawyers' roles where human dignity operates "as a relationship among people in which they are not humiliated."²⁴ Under this common-sense account, human dignity exists Page 1659 in "relations among people, rather than as a metaphysical property of individuals."²⁵ For Luban, legal institutions and their agents "violate human dignity when they humiliate people."²⁶ Accordingly, "non-humiliation" functions as a "proxy for honoring human dignity" in law and legal advocacy. ²⁷

Engrafted on the defense of the Jena Six, Luban's dignitary conception departs meaningfully from the standard adversarial conception of criminal-justice ethics. As I have argued elsewhere, the standard conception affords a "colorblind account of legal ethics and lawyers' roles,"²⁸ but permits race-coded "norms of adversarial competition" to "shape the roles and relationships" among prosecutors and defenders, offenders and victims, and courts and communities. ²⁹ An outsider conception, I have argued by way of comparison, furnishes "a difference-based, anti-subordination account of legal ethics and lawyers' roles" that reshape existing prosecutor and defender relationships.³⁰ That race-conscious account, I have maintained, draws on the rebellious "identity norms of the civil rights movement and critical theories of race to resist the marginalization of people"-offenders and victims-"in legal relationships" within the criminal-justice system.31 Both overtly and covertly inflicted, marginalization damages human dignity by casting an offender or victim as inferior and by reducing an offender or victim to the status of an object.³² Page 1660

Critical race theory seeks "to locate and overturn subordinating racial identities and racialized narratives in law, culture, and society."³³ The movement and its progeny "give rise to a transformative account of legal ethics and lawyers' roles that emphasize the normative values of difference-based client identity and community-incited legal-political resistance to racial inequality."³⁴ Borrowing from Luban's alternative conception of legal ethics, the account gains strength from the integration of racial identity and human-dignity...