Feminist Public Defense
by Hope Faflick Reynolds, Assistant Appellate Defender
At first glance, feminism and public defense may appear incompatible – at least in certain cases. How could a feminist defend a person accused of sex crimes? How could a feminist question a survivor’s account of abuse? How could a feminist support lower prison sentences for people convicted of sexual abuse, oppose registries, or refuse to call people convicted of sexual abuse “sex offenders?”
But feminism and public defense can be compatible. Feminist public defense requires rejecting culturally entrenched binaries and recognizing the complexities and practicalities of the real world. This article identifies and explores some features of feminist public defense.
Feminist public defense is intersectional and antiracist. Too often, feminism centers the needs of affluent white women at the expense of women of color, poor women, non-binary people, and transgender women. Practicing feminist public defense requires understanding how gender identity, race, sexuality, socioeconomic status, and disability interact in society, in the criminal legal system, and in our clients’ lives.
It’s no secret the criminal legal system disproportionately harms vulnerable people – especially people of color and people without wealth. Survived and Punished, an organization working to decriminalize efforts to survive intimate partner violence and sexual violence, reports that Black women are 4.5 times more likely than white women to be incarcerated. The incarceration rate for women increased 400% between 1986 and 2004, but the incarceration rate for black women increased 800%. The Prison Policy Initiative reports that the median pre-incarceration income for women is 58% of the median income for non-incarcerated women.
Feminist public defense recognizes the ways mass incarceration, poverty, race, gender, and other identities intersect.
Feminist public defense confronts carceral feminism. It’s worth understanding how mainstream feminism historically overused carceral tools. For too long, feminists have sought solutions to gender based violence within the criminal legal system and the carceral state. Elizabeth Bernstein first named carceral feminism to describe the mainstream feminist movement’s commitment to “a law and order agenda” and “a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals.” Alternatively, abolition feminism, developed by Angela Davis, envisions “a world free from all forms of violence including gender violence and the violence of police and prisons” and approaches problems systemically, prioritizing social justice. Abolition feminism embraces prison abolition as a feminist practice and understands how criminalization and caging undermine gender equity.
Feminist public defense looks more like abolition feminism than carceral feminism. It understands the limits of policing, prosecution, and prison as tools to reduce gender violence and sex crimes. It invites us to expand our understanding of harm from interpersonal violence to include the ways the state itself perpetrates harm.
Feminist public defense embraces holistic and creative practice. Because it seeks solutions outside the criminal legal system and the carceral state, feminist public defense is inherently creative and innovative. Lola Olufemi writes “Feminism is a political project about what could be. It’s always looking forward to futures we can’t quite grasp yet. It’s a way of wishing, hoping, aiming at everything that has been deemed impossible.” Seeking solutions outside the existing criminal legal system and fighting for systemic changes that will serve our clients better both require creativity.
This principle is especially important for people like public defenders who work within the criminal legal system. We are experts in the ways the criminal legal system fails our clients. We are convinced of our clients’ ability to make positive changes in their lives, and see them struggle without proper support. We should work to find ways to fill those deficits and make sure our clients have the support they need. This model looks more like holistic public defense, which has four pillars: (1) seamless access to services that meet legal and social support needs, (2) dynamic, interdisciplinary communication, (3) interdisciplinary zealous advocacy, and (4) a robust understanding of and connection to the community served. We should approach holistic practice, and any opportunity to provide effective support to our clients, with enthusiasm.
Feminist public defense respects and supports survivors. Our primary duty is always to our clients. In some cases, that means questioning the credibility of a survivor’s account of abuse. To the extent zealous advocacy requires us to confront or question survivors of gender violence, we should do so respectfully. Failing to respect survivors risks harming our clients – we could lose credibility with a judge or jury, or distract them from the points we are trying to communicate.
Feminist public defense also recognizes the ways the existing criminal legal system harms survivors. The criminal legal system is not built to serve and support survivors, but to serve State interests. When responding to intimate partner violence, police and prosecutors may misidentify abusive people and survivors. They may not honor a survivor’s wishes about seeking criminal charges or harsh sentences. The process of prosecution can compound trauma for survivors rather than supporting their healing. Feminist public defense acknowledges that the criminal legal system doesn’t only cheat our clients – it cheats survivors, too.
When struggling with a case, we can remind ourselves of our ability to handle nuance and complexity. It also helps to name some of the false binaries contributing to our struggle. We need not choose between being public defenders or feminists. We can be both. We need not choose between fighting for our clients’ freedom and fighting for gender equality and a world free from gender violence. We can do both. We can both fulfill our duty to represent our clients well and respect survivors.
Feminist public defense requires internal and external advocacy. Practicing feminist public defense is not only external. It also requires in-house practices and policies that are equitable and inclusive. Working to diversify our workplaces, making sure our offices are free from sexual harassment, and confronting sexism and gender discrimination when they show up in the office are all ways we can practice feminist public defense. We should be sure to keep our own houses in order while working for our ideals.
Conclusion. Practicing feminist public defense is possible. It includes intersectional and antiracist approaches, confronts carceral feminism and embraces holistic, creative practices. It respects and supports survivors and requires both internal and external advocacy. We need not choose between being feminists and being public defenders – we can be both.
Recommended further reading:
Abolition. Feminism. Now. by Angela Davis, Gina Denta, Erica Meiners, and Beth Richie
The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration by Aya Gruber
In an Abusive State: How Neoliberalism Appropriated the Feminist Movement Against Sexual Violence by Kristin Bumiller
Arrested Justice: Black Women, Violence, and America’s Prison Nation by Beth Richie
Caught in the Net: The Impact of Drug Policies on Women and Families