Jim Crow Ethics and the Defense of the Jena Six

Abstract:     
This Article is part of a larger, ongoing project investigating the role of race, lawyers, and ethics in the American criminal-justice system. The purpose of the project is to understand the race-based, identity-making practices of prosecutors and defenders in order to craft alternative civil rights and criminal-justice strategies in cases of racially-motivated violence. To that end, the Article revisits the 2006 prosecution and defense of the Jena Six in LaSalle Parish, Louisiana in the hope of uncovering the professional norms of practice under de jure and de facto conditions of racial segregation, a set of norms I call Jim Crow legal ethics. Jim Crow ethical norms condone and oftentimes encourage coded claims of race-based identity in describing individual black offenders as culturally and socially inferior, and, thus, in publicly shaping the collective histories of black offender communities.

Instead of rehearsing the Jim Crow norms and narratives typically constructing the identity and history of black offenders, such as "rotten social background" and "black rage," this Article addresses a more provocative claim: the "natural" criminal pathology of black male offenders, what I call the antebellum defense. Proffered as an excuse or as a mitigating circumstance, the antebellum defense offers coded racial narratives to diminish the mental capacity and moral character of black offenders and their communities. Under the standard conception of criminal defense ethics, the antebellum defense permits defenders to excuse black male lawbreaking for reasons of "innate" criminal character rather than environmental deprivation, cultural deviance or socioeconomic oppression. Heard at trial and on appeal, the defense finds justification in the instrumental reasoning of conventional lawyer adversarial discretion.

The defender discretion to assert the antebellum defense in the Jena Six case and elsewhere raises troubling questions of lawyer morality in the criminal- justice system. To evaluate the morality of the antebellum defense for the Jena Six, the Article turns to David Luban's recent writings on legal ethics and human dignity, juxtaposing the standard adversarial conception of criminal-defense ethics against his dignitary conception of ethics, here enlarged by identity-affirming, dignity-restoring, and community-empowering norms of advocacy. Guided by these and other integrity norms, Luban's alternative dignitary conception provides moral direction to civil rights and criminal-justice advocates in cases of racially motivated violence.

Accepted Paper Series