January 21, 2020 Women in Criminal Justice

Who Needs the Old Boys’ Club? Let’s Make Our Own—Highlights from the WCJ Bay Area Listening Session

Maria Carmen Hinayon

On August 8, 2019, the Women in Criminal Justice (WCJ) Task Force held a listening session at UC Hastings College of the Law in San Francisco, California. One of many listening sessions being conducted around the country, this event highlighted the myriad challenges faced by women criminal justice (CJ) lawyers relating to inclusion, retention, and promotion.

The Bay Area is comprised of nine counties: Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Solano, Sonoma, and San Francisco. The State Bar reports California’s legal profession is still predominantly male and white though women comprise about half of the California population. (Bar Brief, St. Bar Cal. (July 17, 2019).) Disparities are significant especially when race is considered. For example, only 7 percent of attorneys are Hispanic/Latino though they comprise 35 percent of the population, while 68 percent of attorneys are white though they comprise only 41 percent of the population. (Id.)

The task force heard testimonies from women CJ practitioners, including prosecutors, defense attorneys, civil rights attorneys, “crimmigration” (intersection of CJ and immigration) attorneys, and CJ reform attorneys, as well as judges. Due to the sensitive and personal information shared, the identities of the participants were kept confidential.

This event did not disappoint in terms of diversity and representation. Women of color and LGBTQ women showed up and amplified their intersectional struggles. Task force member and CJS chair-elect April Frazier-Camara led a session dedicated to black women and the unique challenges they face at the intersection of race and gender.

It is crucial to note the stark difference between the experiences of white women and women of color, especially black women. Though all women face gender-based barriers, this event revealed that such challenges are magnified for women of color as they are compounded by race-based oppression. LGBTQ women endure further oppression based on their sexual orientation and gender identity/expression.

Demeaned, Belittled, and Stereotyped

Participants reported being demeaned, belittled, and stereotyped as sexist comments and name calling are common happenstance. Male attorneys and judges refer to women attorneys as “sweetheart,” “babe,” “little lady,” and “eye candy” in a demeaning and patronizing way. For women of color, the insults are often racialized. A white male judge referred to a former public defender as the “exotic foreigner.” Another white male judge repeatedly told a public defender of South Asian descent “you remind me of Gandhi” and “your people are good in math.”

Women, especially women of color, are perceived as anything but the attorney in courtrooms, being mistaken as court reporters, interpreters, or legal assistants. A black defense attorney noted how a court staff thought her client, who happened to be wearing a suit, was the attorney, not her.

The testimonies revealed how stereotyping pervades the CJ profession. In court, women who are assertive are perceived as too angry while their male counterparts are viewed as effective. Women who show vulnerability are perceived as too emotional while their male counterparts are viewed as sympathetic.

Stereotyping also affects women’s ability to broker fair deals for their clients. A male attorney told a public defender she would not get a good deal because women attorneys defend like a girl. A white male prosecutor refused to offer her client a plea despite his being known in the area as someone who likes to plea down felonies to misdemeanors.

For women of color, the stereotypes are compounded with racist overtones. A black defense attorney recalled having a normal conversation with a white law clerk. A colleague later informed her that the law clerk perceived her as threatening. “As a black woman, there is always that thin line between being perceived as assertive or an angry ‘b*tch,’” she noted.

Stereotyping also impacts advancement and promotion. Prosecutors noted how case assignments seem to be based on gender (and sometimes race). A Latina prosecutor reported being promoted to sex crimes although she really wanted (and prepared for) a career in the gang unit. She believes she was sent to the “women” unit where she can be “touchy feely.” And because she is Latina, she was not assigned to the gang unit where she would be prosecuting Latino defendants. For prosecutors, high-profile cases like homicide and gang violence are key to promotion and advancement.

Invisible Women in the Old Boys Club

Participants emphasized the persistence of the “old boys club” in the CJ profession, as they feel like outsiders in courtrooms and chambers among male judges and lawyers. In some cases, the “old boys club” culture impacts fairness. A prosecutor recalled finding out that a male judge and a well-known male defense attorney in the area were having improper ex parte communication about their case.

Participants shared experiences of feeling invisible, as they were dismissed and ignored by male judges and attorneys in the “old boys club.” One attorney was falsely accused of being noisy in the courtroom and admonished by a judge. When her male counterpart clarified that it was them, the male lawyers, who were noisy, the male judge praised him for his honesty. Meanwhile, the woman attorney received neither apologies nor acknowledgment despite being shamed in open court for something she did not do.

The “old boys club” exists even in the judiciary. A LGBTQ woman judge noted getting mostly civil and misdemeanor assignments, which impedes advancement, as high-profile criminal cases—often assigned to older white male judges—pave the way for appeals or supreme court appointments.

The Difficult Choice between Career and Motherhood

Testimonies show the unforgiving nature of the CJ profession when it comes to pregnancy and motherhood. A former federal public defender had to make the difficult decision of changing careers when she became a mother. While she navigated workplace barriers with ease before motherhood, continuing a CJ career became insurmountable during and after her pregnancy. Lawyers and judges used to ask her if she was pregnant, but they were more like accusations, not a question.

Another public defender and new mother expressed her dilemma about changing careers. Although being a public defender is her passion, she now feels the need to sacrifice her dream job for the sake of her child, as she emphasized the near-impossible task of balancing a CJ career and family life. “I do not want to be in a position where I have to choose between my client or my child,” she explained.

#BlackGirlMagic: Black Women at the Forefront

The #BlackGirlMagic session underscored how black women CJ practitioners bear the brunt of the fight for racial justice and gender equity while navigating the CJ system that is opposed to both their womanhood and blackness.

A defense attorney noted the daily burden of constantly thinking about her tone, appearance, and demeanor to avoid negative stereotypes associated with her race and gender. She practiced in a predominantly white jurisdiction where most of the defendants were black men. As a black woman fighting in a white space, she remembered the emotional toll of advocating for clients who looked like her uncle, brother, or father.

A former prosecutor noted how progressive black women prosecutors face bias compared to their white male counterparts. Progressive white male prosecutors are praised for promoting equity and fairness. Progressive black women prosecutors, on the other hand, are publicly criticized and, in some cases, slapped with politically motivated lawsuits.

“That #BlackGirlMagic comes with black girl fatigue,” one defense attorney noted, emphasizing the need to support black women attorneys in the CJ profession as they play a crucial role in advancing racial justice and gender equity.

Moving Forward

Participants presented ideas to the task force moving forward. An attorney emphasized how unionization helped them bargain policies such as time-sharing and flexible work arrangements for pregnant women and new mothers. The need for a comprehensive, mandatory, and regular implicit bias and sensitivity trainings among lawyers and judges was also echoed.

Participants emphasized the role of mentorship and pipelines/pathways, as there is currently a lack of transparency and education in the areas of promotion and advancement, including pathways to judgeship and running for elected positions.

Equally needed are concrete mental health support for CJ practitioners and resources for dealing with secondary trauma. Participants reported seeing colleagues leave due to exhaustion while others succumbed to substance abuse.

Lastly, participants highlighted the need for women to be better advocates for themselves and for each other. As learned from one participant’s experience, men will often take credit for the efforts of women; so “toot your own horn!” one attorney exclaimed, and “shine light to each other” in order to elevate each other’s work and achievements.

Regarding the “old boys club,” one of the participants, a black woman defense lawyer, had the perfect response: “Who needs that? Let’s make our own. We do things better anyways.”

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Maria Carmen Hinayon

Maria Carmen Hinayon is a Bay Area-based Filipina American civil rights attorney, a transgender community advocate, and a Women in Criminal Justice Task Force member.