The gist of the story is that when she was a young attorney, a judge asked Clinton to defend a man accused of raping of a 12-year-old girl. The articles alleged that Clinton “smeared” and disparaged the victim. Certainly, the criminal justice system frequently does not provide justice to victims of rape and sexual assault. To say that the system is imperfect is a gross understatement. That said, Clinton was doing her job. A job that she was obligated to take according to the Model Rules of Professional Conduct, and a job that guarantees that the constitutional protections of our nation stay in tact. Perhaps the reason these headlines hit such a deep nerve, is because as a future public defender, I will almost certainly have to defend people accused of rape.
Most of the time when I tell people that I am going to be a public defender they are supportive and say something overly generous along the lines of, “we need more people like you,” or “I could never do that type of work.” But every once in awhile, usually in a group of women, someone will say, “how could you defend a rapist?” or bluntly, “criminal defense work is un-feminist.” The first time I heard someone respond in the latter manner, I was taken aback and not sure how to respond. Surely public defense is nuanced and challenging, and part of the job is defending people guilty of horrendous crimes, but is it inherently un-feminist? I don’t think so.
For one, stating that public defense is un-feminist ignores the substantial amount of women in the criminal justice system. The number of women incarcerated in federal and state prisons has increased at almost double the rate of men in the past 30 years. In 1980, there were 13,258 women in federal and state prisons and in 2013 that number jumped to 104,134. According to The Sentencing Project, “these women often have significant histories of physical and sexual abuse, high rates of HIV infection, and substance abuse.”
The reasons for the rapid increase of female prisoners are varied and complex, but can be tied to four major factors – according to Erika Kates, a social scientist at Wellesley College – the war on crime, women’s susceptibility to drugs, relapsing to jail, and bail. During the war on crime, tough sentencing laws with mandatory minimums were passed for drug offenses; these laws contributed to an “800 percent increase in black women’s incarceration.”
Another factor that contributes to the rise in incarcerated women is women’s inability to pay for bail. Thus, women “languish” in higher security detention centers, farther away from home, because many states do not have the capacity to house women in their county jails. The juxtaposition of harsher sentencing laws for non-violent offenses, and the fact that women are poorer than men in every state, assures that many of my future clients will be women. Supporting the most politically disadvantaged women in our society, at the most vulnerable times in their lives, seems obviously feminist to me.
I understand that part of my career future career will be representing men who hurt women. While representing an alleged rapist is not something that I am excited about, doing so will not make me anti-feminist. In her article “How Could You Represent Those People,” Abbe Smith states that, “these cases are not my favorite part of the job, but I have found a way to do it that is consonant with my feminism.” Smith continues, “Feminists have a long history of working on behalf of the disadvantaged and marginalized. We take a critical view of law and recognize that it can perpetuate inequality.” Like Smith, my feminist beliefs are rooted in intersectionality and I understand that the patriarchy benefits from disenfranchising poor people and men of color, just as much as it benefits from disenfranchising women.
Our adversarial system of criminal justice pits parties against each other and leaves very little room for multifaceted accounts, legitimate justice, and genuine healing. The belief that some people are inherently good and other people are inherently evil is overly simplistic and fails to consider the various factors that intersect to determine people’s opportunities and outcomes. Frequently, my clients have suffered from a combination of adverse life events including physical and emotional abuse, addiction, mental illness, poverty, and institutionalized racism.
Indigent criminal defense is about more than guilt or innocence; it is about providing support and justice for the most disenfranchised members of our society. It is about the feminist notion of treating every person with humanity, regardless of their offense.