A justice who understands where the law falls short
Ketanji Brown Jackson, the nominee for the United States Supreme Court, is unquestionably qualified to sit on the highest court in the land. She has more trial experience than any sitting justice. If confirmed, she will not only be the first Black woman justice, but only the second sitting justice to serve at all three levels of the federal judiciary: district, appellate, and the Supreme Court. However, it is Jacksons’ experience as a former federal public defender — a first in the Supreme Court’s 232-year history — that I find most compelling.
The Sixth Amendment of our Constitution, part of our Bill of Rights, sets forth the rights of the accused in criminal prosecutions: to a speedy trial, to an impartial jury, to be informed of the nature of the accusations against them, to confront and cross-examine witnesses, and to enlist the assistance of counsel. In 1963, the Supreme Court ruled that the U.S. Constitution required state courts to appoint lawyers for defendants who were unable to afford one. (Gideon v. Wainwright) And it is public defenders who safeguard this fundamental and essential right for the poor and marginalized in America.
Up until a year ago, everything I knew about our public defense system I had learned on TV, by watching shows like "Law and Order." My public stance against untrained and overzealous child abuse physicians caught the attention of public defenders in counties throughout the state and across the country. Over the past year, attorneys working in parent representation at various state offices of public defense have asked me to review cases where parents have been accused of abuse or neglect. The mistakes I have seen are frightening.
It is difficult to recognize the value of a legal defense until you need it. I naively believed all people were considered “innocent until proven guilty” to the same degree, but this past year opened my eyes to how wrong I was. I have seen obvious birthmarks miscategorized as bruises, allergic skin disease mischaracterized as bite marks, and hives misidentified as abusive hand prints. In the majority of cases, parents are poor or people of color. Often, these children do not have a single broken bone. The medical conditions that are missed should have been easily identified, but for some inexplicable reason, high-quality healthcare was just out of reach.
In general, mothers sought evaluation for their children voluntarily and placed their trust in a healthcare system which betrayed them. Whether due to carelessness, bias, or inexperience on the part of healthcare professionals, children are unnecessarily removed from their homes. Once families are reported to child welfare authorities, the system assumes the worst. Compared to white parents, those from racial and ethnic minority groups are nine times more likely to be reported for child abuse and in a healthcare setting, four times more likely to undergo evaluation for child abuse. Of course, the opposite is also true. Abusive injuries are frequently overlooked when parents and their children are white, due to bias of healthcare workers.
The more cases I have seen, the more egregious the mistakes. In one case, a state accused a mother of neglect, and placed her child into foster care, due to not having a birth defect surgically corrected. The mother reported she had never been informed that her child would require an operation in the first place. Indeed, according to the medical records, the mother was telling the truth. In fact, the records reveal the medical staff did not think highly of this woman because she had no prenatal care and lacked a high school education. Her transportation difficulties and marginal living conditions made things worse because no one felt the mother deserved to know what was going on with her child. Before removing her child, the authorities should have informed her about her child’s condition at a minimum.
In another case, a child was admitted to the hospital for "failure to thrive," a condition where children are not gaining weight well. This can be due to lack of nutrition; however, a number of medical conditions should be considered as a cause of poor weight gain. Physicians who evaluated the child saw only one possible explanation: child abuse and neglect. The mother was single, on state assistance, and from an African nation. As I reviewed photos, laboratory tests, x-rays, and other assorted details, it became clear that an entire organ system was failing. Despite my recommendation for urgent specialty evaluation, it took more than a month for this child to be evaluated and treated for a significant, life-threatening disease.
It is cases like these which keep me up at night.
Justice in this country, like healthcare, is two-tiered: there are those who can afford it and those who cannot. When one is poor, a person of color, or living in a condemned trailer, their station in life becomes substantiating proof of their negligence. Indigent defendants are considered “guilty until proven innocent,” rather than the other way around.
The reason I am involved with these cases has everything to do with public defenders, the lawyers who are willing to defend those unable to defend themselves. Ketanji Brown Jackson has done this work, which means she understands how the law can fall short of delivering justice. While Jackson has been accused of being “soft on crime,” in my opinion, she is “fair on crime,” a critical distinction in a world where everyone is not presumed innocent from the very start. And she will make an extraordinary addition to the U.S. Supreme Court.
Dr. Niran Al-Agba is a pediatrician in Silverdale and writes a regular column for the Kitsap Sun. Contact her at niranalagba@gmail.com.
This article originally appeared on Kitsap Sun: Ketanji Brown Jackson's experience as a public defender is important
