Representing “Disfavored” Clients in a Criminal Injustice System

October 14, 2015
Guest Post

by Sheila Bedi, Clinical Associate Professor of Law, Northwestern University School of Law; attorney, Roderick and Solange MacArthur Justice Center, Northwestern University School of Law’s Bluhm Legal Clinic

Prisons and jails are a revolving door of brutality where people held behind bars experience horrific abuse funded by taxpayers and meted out at the hands of the state. My practice is dedicated almost exclusively toworking with and for men, women and children who live behind bars, and most of the cases I’ve filed have to do with prison and jail conditions.

The facts of some of my cases speak for themselves. A juvenile prison in Mississippi was notorious for subjecting the young women there to sexual abuse, and in the wake of a particularly horrific incident during which correctional officers sexually abused girls who were then left shackled together for over a month, the prison was permanently closed. In downstate Illinois, a young man whose only offense was a first-time drug possession endured over 12 hours of brutal rape. He joined the over 200,000 people who survive sexual abuse in our nation’s prisons. Another case involved a private prison company that raked in over $100 million in profits while subjecting men to abusive conditions. There, some prison staff exploited the youth by selling drugs inside the facility, and youths who were handcuffed and defenseless were kicked, punched and beaten. Other youths were stripped naked and held in isolation for weeks at a time. Young men with serious health needs languished without medical care, sometimes risking death or permanent injury. A federal court found that these conditions resulted in “a cesspool of unconstitutional and inhuman acts . . . The sum of these actions and inactions . . . paints a picture of such horror as should be unrealized anywhere in the civilized world.”

My work is about transforming—and hopefully dismantling—the criminal injustice system and enforcing the constitutional rights of people who live in the shadows. The challenge is to help the courts understand and reckon with the humanity of the 2.2 million men, women and children this country holds behinds bars. One of the ways that happens is when lawyers recognize the agency, courage and resilience of their clients. I am humbled and often awestruck by the courage of my clients, and the fact that they are willing to trust me with the truth of what they endure behind bars is an incredible privilege. Most of my cases are class actions seeking only injunctive relief. That means my clients aren’t getting any money from being involved in this work and instead put themselves at great risk of retaliation by speaking up and telling their stories to the court, all to ensure that others are protected from the abuses they endure.

My practice has forced me to grapple with important legal issues including the contours of Eighth Amendment jurisprudence and the intricacies of class certification. The legal issues are challenging, frustrating and often exhilarating. But the more vital, profound and devastating lessons are related to the incredible toll our country’s addiction to imprisonment has on individuals, families and communities, and the ways in which the criminal injustice system is bound up with our history of slavery and white supremacy in its other, more modern forms.

As to the issue of race, one in nine African American men between the ages of 20 and 34 live behind bars. This is not because African Americans commit more crime. We know that of the total population of drug users, African Americans represent only 12 percent, yet African Americans constitute almost 60 percent of those imprisoned for drug offenses. African Americans are sent to prison for drug offenses at 10 times the rate for white folks. In Cook County, Illinois, the vast majority of imprisoned people are African Americans from neighborhoods where poverty is concentrated. Over 70 percent are incarcerated for non-violent offenses, but because they’re poor, they cannot afford bail.

The racial disparities in the criminal justice system are stark, real and cannot be explained away by rates of offending. Instead, the racial disparities are caused by the deep racial bias that infects policing, the administration of justice, and sentencing. Because of both the inherent racism and abuse endemic to our prisons and jails, mass incarceration is a human rights violation—one that happens in our names and with our tax dollars. As a result, we are all complicit. And we are all a little less free as a result of it. Less free because these conditions breed more violence on the streets and less free because in the act of dehumanizing another, we dehumanize ourselves.

Communities and families are torn apart by mass imprisonment. I recently spoke at an ACS event in Chicago where the panel discussion was about the importance of representing “disfavored” clients. I ask the question—with great respect to the organizers—disfavored by whom? The people I represent are certainly not disfavored by their family members who ride three buses and endure humiliating pat down searches to have a 20-minute visit once a week with their loved ones in prison.

Prison phone companies make over $1 billion a year. Until the FCC intervened recently, the industry charged families as much as $1 per minute and $12 per call. People have become very, very wealthy by monetizing the connections—the love—between people inside prison and their families in the free world. This $1 billion industry exists based solely on the love and support poor families, mostly Black and Brown, are providing to people who live behind bars. The 2.2 million people living behind bars in this country are not disfavored. They are loved, they are missed, and their absence in their communities is felt acutely. They are the cause of countless sleepless nights as families have to worry about sometimes life-threatening prison conditions.

The justice system is not about public safety or even about justice; it is about maintaining white supremacy and institutionalizing social control. Do the stakeholders in this system disfavor my clients? Of course they do. They must. So the real issue is not about the ways these clients are disfavored, it is about why a system that is inherently racist and about institutionalizing social control—not public safety—has the sort of legitimacy it has.

That’s why my colleagues and I develop and execute legal strategies that reveal the ugly truths about justice in America—strategies that destabilize and de-legitimize the current system and that will hopefully help end this era of mass imprisonment.