#NoRetreat — The Women in Criminal Justice Task Force Take the Road Less Traveled to the ABA House of Delegates

At one of the first meetings of the Women in Criminal Justice Task Force in early 2019, an accomplished female attorney passionately told us the story of how she had tried for years to get a nomination to become a judge, only to be repeatedly marginalized and overlooked for other candidates, the vast majority of whom were white males. She got emotional as she told her story, wondering out loud whether her goal was all worth it and if she should keep going.

My response to her was immediate, visceral, and perhaps a little loud—as the only military member in the room, I instinctively blurted out, “We are not retreating. We can regroup, but no retreat.” Little did I know that “#NoRetreat” would become the Task Force’s unofficial motto as we soldiered on in our mission: investigate gender-based barriers to hiring, promotion, and retention in criminal law, and report on the status of women in this field.

Over a period of 18 months, we conducted 12 listening sessions across the United States and online. We intentionally sought participation and input from professionals in rural and underfunded areas in an attempt to collect qualitative and quantitative data from every nook and cranny of the criminal law profession. Task Force members and participants alike participated in podcasts and volunteered to write a regular column in this magazine. Maryam Ahranjani, our brilliantly accomplished reporter, penned two law review articles documenting our research. Maryam Ahranjani, Sprinting a Marathon: Next Steps for Gender Equity in Criminal Legal Employment, 106 Minn. L. Rev. 228 (2022); Maryam Ahranjani, “Toughen Up, Buttercup” versus #TimesUp: Initial Findings of the ABA Women in Criminal Justice Task Force, 25 Berkeley J. Crim. L. 99 (2020).

Of course, the Task Force experienced challenges, well beyond COVID-19 and the inherent difficulties in conducting listening sessions of such a sensitive and personal nature online. We struggled with the narrow scope of our mandate and had to be actively conscious to avoid mission creep. Although we were focused on women in the criminal law profession, we quickly realized the issues we discussed applied broadly to women across the entire spectrum of legal services—women in civil practice or other areas of law are also experiencing a lack of opportunities for professional development and advancement, among other challenges. See Patricia Lee Refo, Making Strides Towards Gender Equality in the Legal Profession, ABA Bus. & Corp. Litig. Comm. Newsl., Spring 2019.

We also saw the disproportionate effect amplified when considering the intersection of gender with other demographics, including women of color, women in rural areas, members of the LGBTQ+ community, etc. See Matt Reynolds, Slow Going: Despite Diversity Gains, Some Law Firm Leaders Bemoan Lack of Progress, ABA J., Dec. 2022. Moreover, while the issues we identified disproportionally affect women, some areas also affect men—they too can suffer from the negative consequences of the flexibility stigma or the vicarious trauma from handling criminal cases. See Roberta D. Liebenberg & Stephanie A. Scharf, Where Does the Legal Profession Go from Here?, ABA Practice Forward Rep. (2022).

Along the way, there were also naysayers. As our participants and our own experience told us, there were categories of cynics along the lines of “gender equity is no longer a problem,” “gender equity is not a big problem,” and “even if gender equity is a problem, it’s not my problem.” Moreover, we found that while many employers are not receptive to change, some are but do not know where to start. Such sentiments only reiterated the importance of our work and motivated us to press on, but they also uncovered a bigger challenge: What do we do with the bevy of information we gathered, and how do we promulgate that information in a comprehensive form that provides a realistic path toward gender equity?

At a focus group meeting in November 2021, Jonathan Wroblewski, Director of the Department of Justice Office of Policy and Legislation and a former Criminal Justice Section (CJS) council member, suggested we model our product after the ABA Ten Principles of a Public Defense Delivery System. Approved by the ABA House of Delegates in 2002, that document had already achieved what we sought to accomplish with our work—create a practical guide that reflected research findings and was actually being adopted and implemented widely.

As a result, the Task Force produced a report entitled Ten Principles to Achieve Gender Equity in the Criminal Legal Profession. The principles are based on the Task Force’s extensive data collection and offer recommendations to promote gender equity in four areas of interest to employers (hiring, retention, promotion, and equitable practice). They are:

1. Create culture change.
2. Acknowledge and address intersectional challenges.
3. Implement diversity, equity, and inclusion training.
4. Create transparent policies and opportunities for professional development.
5. Eliminate the flexibility stigma.
6. Offer multilayered, individualized support.
7. Provide low- or no-cost therapeutic support.
8. Provide private spaces.
9. Support caretaking.
10. Continual evaluation and adjustment.

The accompanying commentary to the principles defines terms like “allyship” and “flexibility stigma,” and the report also provides animating information, illustrative sample policies and programs, and other resources for implementation. While our goal was to promote gender equity, the implementation of these principles will provide workplaces that are diverse, inclusive, and equitable for all, and ensure that we collectively do a better job of serving clients, communities, and the justice system at large.

On November 19, 2022, the CJS Counsel unanimously voted in favor of adopting the Task Force’s Report. The Resolution will next be presented for adoption to the full House of Delegates as early as the 2023 Midyear Meeting in New Orleans.

But the work cannot stop there. For decades, the ABA has adopted other resolutions to advance the goal of gender equity, but this is the first resolution that specifically addresses and provides steps for lawyers in the criminal legal system. Yet, as the Task Force has come to more fully document over our journey, gender issues continue to persist both in and out of the criminal justice space. For example, the ABA Profile of the Legal Profession 2022 shows quantitively the number of women in senior leadership roles at large firms does not correspond to the growing number of women in the profession, which also struggles to retain female attorneys. Just a month before the CJS Council’s adoption of the Task Force’s report, the ABA announced its collaboration with the Association of Law Firm Diversity Professionals to increase data collection to assess and advance diversity, equity, and inclusion among law firms. Even the day before the CJS Council’s vote, the ABA’s Council of the Section of Legal Education and Admission to the Bar voted to eliminate the LSAT to increase diversity in law schools, which disproportionately affects women and particularly minorities; the House of Delegates will consider this change in the future. See William C. Kidder, Portia Denied: Unmasking Gender Bias on the LSAT and Its Relationship to Racial Diversity in Legal Education, 12 Yale J.L. & Feminism 1 (2020).

Clearly, there is still work to be done, and the Task Force’s Resolution is just a small piece of a larger puzzle. But what it does represent is more than just words: the report and the principles represent each and every voice that we heard during listening sessions across the United States—each person who responded to our request to come and testify, to tell us their stories and their experiences, and to share with us their heartfelt concerns and deepest fears.

Moreover, #NoRetreat is not just a mantra—it represents the two ideals that should permeate this issue moving forward. First, no woman should feel like she does not have a support network. The Task Force is working with the CJS Women in Criminal Justice Committee and other committees across the ABA. We seek to encourage and promote the women who do incredible work in this space, especially those with intersectional identities, in underrepresented areas, and without the support network that usually accompanies larger urban areas. Second, we refuse to accept the status quo simply because it might be the path of least resistance. We must continue to discuss the hard issues and continue to do the hard things to advance the talented women who play such a critical role in the criminal justice system.

Our friend, whose story I told at the beginning of this article, was elected as a judge earlier this year after pouring her heart and soul into the campaign. Her story shows that the road has been a long one, but the journey is not over. Retreat is simply not an option.