Capers on Silencing as Blackening

I. Bennett Capers, Fordham University School of Law, has published Silencing as Blackening at 114 Georgetown Law Journal 813 (2026). Here is the abstract.

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, but instead the result of a host of rules and decisions that encourage, coerce, and even compel silence. Two, although we have come to take defendants sitting silently as normal, in fact this silence is of recent origin. Three, although we claim this silence benefits defendants, the real beneficiary seems to be the State. Four, this silencing of defendants has a racial history, and today has race effects, such that we should recognize that silencing functions as a type of blackening. Rather than silencing defendants, and in effect blackening them, "Silencing as Blackening" argues we should carve out space for defendants to speak freely. And carve out space for us to listen. It argues that listening to defendants can help us rethink our entire criminal system. More ambitiously still, it argues that, just maybe, listening to defendants can help reduce racial and other biases. Can help undo race. And can help us let race go.

Download the article from SSRN at the link.