Culturally Competent Mitigation

To assist lawyers in developing culturally competent mitigation for Arab and Muslim Americans, The Mercury Endeavor, LLC provides the following information and sources from portions of Dr. Semmerling’s paper, Arab and Muslim Americans: Defense Considerations (2010) (presented at NLADA and NASAMS Life in the Balance Conference, Nashville, Tennessee and Orlando, Florida; The Clarence Darrow Death Penalty Defense College, Chicago, Illinois; and The Trial Lawyer’s College Death Penalty Defense Seminar, DuBois, Wyoming). Viewers may quote form this webpage but must properly attribute and cite the work to Dr. Tim Jon Semmerling, The Mercury Endeavor, LLC, and the collateral sources cited herein:

Culturally competent mitigation is a standard of performance in capital defense. As Scharlette Holdman and Christopher Seeds declare, "cultural competency is essential to the ability of capital defense teams to discover and reveal the humanity of the accused."1 Defense teams with informed understandings of their clients’ cultures are armed with contexts to better understand the choices available to their clients and their clients’ actions. As a first step toward cultural competency, defense teams must assess their own cultural backgrounds, value diversity, and eliminate stereotypes of their clients.2

If defense teams are to narrate the lives of Arab and Muslim American clients, then defense teams will have to understand that the Arab and Muslim "American experience," since 9/11, seems to be more precarious for them than for other Americans, and yet not simply because of the events of 9/11. Arab and Muslim Americans often struggle to be accepted as "ordinary citizens." Dominant American culture distorts their identity, public opinion operates against them, discrimination excludes them socially and politically, and racism against them is acceptable and even respectable.3 The Arab American Institute/Zogby Poll reports that 76% of young Arab Americans and 58% of Arab American Muslims report that they have "personally experienced discrimination in the past because of their ethnicity." Fifty-seven percent of Arab American respondents worry about the long-term effects of discrimination against them.4

Indeed, dominant American culture had maligned Arabs and Muslims long beforehand, but since 9/11 and the War on Terror, it has increasingly vocalized and viewed Arab and Muslim Americans as not-real Americans, disloyal immigrants, "Others-than- us," and internal enemies. In 1996, June Jordan declared, "Arab peoples and Arab Americans occupy the lowest, the most reviled spot in the racist mind of America. …I believe that to be Muslim and to be Arab is to be a people subject to the most uninhibited, lethal bullying possible."5 In 2002, Louise Cainkar wrote, "The violence, discrimination, and intolerance now faced by Arabs [and Muslims] in American society have reached a level unparalleled in their 100-year history in the United States.”6 In 2008, Moustafa Bayoumi borrowed from W.E.B. DuBois’s classic, early twentieth-century question "How does it feel to be a problem?" which DuBois asked to demonstrate how whites reviled African Americans. Bayoumi re-posed the question to Arab and Muslim Americans, the "new problem" of American society, who “hold the dubious distinction of being the first new communities of suspicion after the hard-won victories of the civil-rights era."7 Keeping these assessments in mind, it is incumbent upon defense teams to take notice of dominant American culture’s discrimination of Arab and Muslim American clients and to take action.

In response to their precarious position, Arab and Muslim Americans have developed a "double-consciousness." On the one hand, they are aware of their own self-identities, but, on the other, they are aware of how dominant American culture contemptuously views them. This double-consciousness limits their self-assuredness and sense of personal security as American citizens. For example, many Arab and Muslim Americans began worrying about the possibility of backlashes from their names (Mohammad or Osama), their dress and appearances (hijab, beards, and dark skin), their homelands and heritage (coming from countries where America and its allies were militarily engaged) and their interactions with their institutions (mosques, clubs, and charities). In response, they devised personal curtailments of their selves and behavior in order to protect from governmental and public harassment, assault, arrest, and disappearance. Some Arab and Muslim Americans "covered" – the personal act of toning down traits that identified them or stigmatized them as a group. They changed their names, shaved their beards, changed their clothing styles, avoided going out in public, affiliated themselves with other nationalities, and chose not to speak out against governmental targeting – "a series of rational covering responses just to survive the wave of hate surging throughout the country," according to John Tehranian.8 Naber calls this conscious, but psychologically harmful, effort to curtail self-identity and behaviors an “internment of the psyche."9

Defense teams will need to incorporate the challenges and difficulties clients encounter while forging their self-identities and negotiating their social places within American society. Recent studies of Arab and Muslim American communities in the pre- and post-9/11 periods have shed new light on the obstacles, struggles, and stresses of these communities as they try to obtain acceptance within American society. But as Amaney Jamal suggests, the real problem may be the "host" society itself, which relegates ethnic groups into subordinate classifications. Therefore, it is critical for defense teams to understand and incorporate into their clients’ social histories how dominant American culture creates the obstacles, forges the struggles, and adds to the stress of Arab and Muslim Americans as these citizens try to negotiate their Americaness. Moreover, it is essential for defense teams to understand how they, as interpellated members and active participants in dominant American culture, reify these obstacles, struggles, and stresses for Arab and Muslim Americans, so that defense teams can self-regulate and expose opponents for such acts. We must become accountable when we attempt to discover and narrate our Arab and Muslim American clients’ stories.

When developing sentencing mitigation for Arab and Muslim American clients, I am calling for defense teams to develop their own double-consciousnesses, including (1) knowledge of their clients’ self-identities and (2) awareness of how defense teams and others, as interpellated members of dominant American culture, see their clients. Although I do not call for the insidiousness of an internment of the psyche, I mean to encourage a mechanism of self-assessment and self-discipline of our thoughts and actions when seeing and representing Arab and Muslim Americans and to bring forth the continual self-evaluating questions of "Am I being prejudiced? Was that racist?" …

1  Scharlette Holdman and Christopher Seeds, Cultural Competency in Capital Mitigation, 36 Hofstra L. Rev. 883 (2008).
2  Id. at 892, 911.
3  Louise Cainkar, “Thinking Outside the Box,” in Race and Arab Americans Before and After 9/11 80 (Amaney Jamal and Nadine Naber, 2008); Andrew Shryock, “Moral Analogies of Race,” in Id. at 113; Amaney Jamal, “Civil Liberties and Otherization of Arab and Muslim Americans,” in Id. at 128; Amaney Jamal, “Conclusion,” in Id. at 320.
4  Forty-two percent of all respondents say they have “personally experienced discrimination in the past because of their ethnicity… The overall percentage of Arab Americans who are “very worried” or “somewhat worried” has remained steady since AAI asked the question in an October 2001poll, falling just three points from 60%.”  Arab Americans: An Identity Survey, AAI/Zogby Poll, July 16, 2007, AA Identifty poll - FINAL.pdf (last visited February 6, 2010).
5  Joseph Suad, et al., “Arab Americans and Muslim Americans in the New York Times Before and After 9/11,” in Race and Arab Americans Before, supra note 3 at 274 (quoting African-American poet June Jordan).
6  Quoted in Jamal, “Civil Liberties and the Otherization of Arab and Muslim Americans,” supra note 3 at 115.
7  Moustafa Bayoumi, How Does it Feel to be a Problem? 2-3 (2008).
8  John Tehranian, Whitewashed: America’s Invisible Middle Eastern Minority 79 (2009).
9  Nadine Naber, “Look, Mohammad the Terrorist is Coming!” supra note 3 at 290-301.



The Mercury Endeavor, LLC is pleased to announce an expansion of our services with the opening of the O’Connor & Semmerling Law Group, LLC – a criminal defense firm. O’Connor & Semmerling Law Group is proud to announce its collaboration with the esteemed Law Offices of Raymond G. Wigell, Ltd. Please visit our new websites to learn more about our legal services and us.

Book Review

The Mercury Endeavor, LLC provides book reviews that defense teams will find applicable, insightful, and reflective for their practices. Book reviews are published to this website periodically. Viewers may quote from this webpage but must properly attribute and cite the work to Dr. Tim Jon Semmerling or Stephen M. O'Connor, The Mercury Endeavor, LLC, and the collateral sources cited herein:

Being Effective With Juries
Tim Jon Semmerling, PhD, JD

BOOK REVIEW: Sundby, Scott E. A Life and Death Decision: A Jury Weighs the Death Penalty..New York: Palgrave MacMillan, 2005. 220 pages. ISBN: 9780230600638.

Death-penalty defense teams ensure their legal effectiveness with the courts, in part, by following the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.1 Just the same, defense teams must also find ways to improve their influential effectiveness with their juries during trials.

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