Participatory Defense During the Pandemic
This article is part of our “Law and Religion Under Pressure: A One-Year Pandemic Retrospective” series.
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Many are still shocked to learn that the United States is the largest jailer in the world. Data shows that the U.S incarcerates about 2 million people annually,1Initiative, Prison Policy. n.d. “Mass Incarceration: The Whole Pie 2020 | Prison Policy Initiative.” Prison Policy Initiative. Accessed March 21, 2021. https://www.prisonpolicy.org/reports/pie2020.html. and that every three seconds, there is an arrest in the United States.2Neusteter, Rebecca, and Megan O’Toole. n.d. “Every Three Seconds – Every Three Seconds – Emerging Findings Institute.” Vera Institute of Justice. Accessed March 21, 2021. https://www.vera.org/publications/arrest-trends-every-three-seconds-landing/arrest-trends-every-three-seconds/findings. Disturbingly, the carceral state has expanded during the global pandemic. According to the COVID-19 Policing Project, “Black, Indigenous, and People of Color (BIPOC) were 2.5x more likely to be policed & punished for violations of COVID-19 orders than white people.” Given an already enormous prison population and the fast-paced continuation of arrests, there is little support for the families and defenders who find themselves forced to engage with this massive and unforgiving system during this global pandemic.
Recently, however, a new organizing tool, Participatory Defense, has been developed that seeks to empower families with support, knowledge, and a plan to realize their power when dealing with the criminal justice system. Participatory Defense allows families and the disenfranchised to realize and regain their power when interacting with the criminal justice system. In this case study, we will examine Participatory Defense as a tool being used in local communities. Specifically, we will consider how this tool is being used within a local organization, and how this tool and this organization directly challenge systems of power.
Participatory Defense is a powerful community organizing model for people who face criminal charges as well as for their families and their communities.3Moore, Janet, Marla Sandys, and Raj Jayadev. 2011. “MAKE THEM HEAR YOU: PARTICIPATORY DEFENSE AND THE STRUGGLE FOR CRIMINAL JUSTICE REFORM.” Albany Law Review. June 11, 2011. http://www.albanylawreview.org/Articles/Vol78_3/78.3.1281%20Moore%20et%20al.PDF. This tool is needed because of the challenges present in our criminal justice system, especially around public defense and family engagement. It is important to understand that in our legal system everyone has the right to have an attorney. This right is granted by the 6th Amendment of the Constitution. However, if a person or family is poor or cannot afford a private lawyer, then they will receive a public attorney, more commonly known as a Public Defender. People who face charges but cannot afford to hire lawyers comprise at least eighty percent of the criminal caseload in the United States.4Albany Law Review Public Defenders are often overworked and carry large caseloads. This means that they are not able to always gather vital information for their clients or stay in contact with families. Because of the large burden that defenders carry and continual growth of the criminal justice system, most defendants are encouraged to take a plea deal. In fact, the whole notion about “my day in court” is a myth: about 90% of cases are resolved by plea deals.5Devers, Lindsey. 2011. “Plea and Charge Bargaining.” Bureau of Justice Statistics. January 24, 2011. https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf. Due to these realities, family members and impacted people are often overwhelmed by this system and are left feeling helpless and alone in trying to assist their loved ones in navigating this system.
This is where Participatory Defense steps in. The community organizing model provides three specific supports for individuals and their families. The first is the Family Justice Hub, a place where families can connect with other families whose loved ones are facing criminal charges. This hub provides support for family members whose loved one is locked up, creating a space where families can safely express the grief and other complex emotions that come with losing a loved one to the system. At these hub meetings, families write their loved one’s name on a board and share stories about their loved ones. Led by families who have been through the Participatory Defense program already, these hubs encourage other families to lead after their loved one has gone through the program. It is important to emphasize that family justice hub meetings are not legal clinics. There are no lawyers in the room. In many respects, that is the point of this new reform model:6Make Them Hear You, Albany Law Review to remind families that they have power in this situation, and to shift the larger narrative that lawyers, judges, and other court officials are the most important actors in the criminal justice system or the only ones who can make an impact.
The second form of support shows up as the Time Served to Time Saved strategy. In this form of support, Participatory Defense penetrates the one domain that facilitates people going to prisons and jails yet has been left unexplored by the movement to end mass incarceration. That domain is the courtroom.7Ibid This strategy is rooted in participation and getting the family and stakeholding involved in the process of the defense of the loved one. This happens in several ways. Families will create social biography packets or videos that will aid the public defender in having some information about the client they are representing. These packets and films are a practical advocacy method that families and communities use to bring their loved ones home from court. These films, which can be made quickly and inexpensively, vividly tell the life history of a person facing criminal charges. As demonstrated by accolades from judges and attorneys alike, they have helped to improve outcomes at every stage of the criminal process, from pretrial release through plea negotiations and sentencing.8Ibid The information in these packets and videos allow families to speak up for their loved ones and depict the person that they know — instead of who the prosecutor tries to display them to be. Social biographies also address the limitations that judges face when deciding another’s fate. Instead of freezing a person in the static moment of a charged offense, social biography videos demonstrate the dynamic lives of loved ones who have a past, a future, and the potential for change, redemption, and transformation like anyone else. Thus, in the words of one organizer, the videos “humanize defendants, destroy stereotypes, and leave judges with a far better understanding of the persons standing before them.”9Ibid
The last form of support is rooted in celebration and protest. The Participatory Defense movement recognizes when injustices are happening and creates a response that is rooted in the community, such as having court watchers to monitor a judge’s behavior and ensure that court actors are supporting individuals. This movement also documents and celebrates their wins for families. The moment when a loved one receives a better deal from the court or when charges are dropped are significant events that often would not have happened without the family’s engagement in the defense. The Participatory Defense model has led to acquittals, charges dismissed and reduced, and prison terms changed to rehabilitation programs. Even life sentences have been taken off the table. The movement recently celebrated a new benchmark by calling for the total transformation of “time served to time saved.” The tally compares the original maximum sentencing exposure faced by people charged with criminal offenses to the result after family and community intervention through the participatory defense model. The tally shows that, in just seven years, the movement has obtained over 1800 years of time saved for families.
Currently there is only one Participatory Defense hub in Georgia, hosted by Women on the Rise. Women on the Rise is a grassroots organization led by women of color who are targeted and/or impacted by the legal system. To adapt to the pandemic, many of these hubs (like Women on the rise) have transitioned to virtual meetings to accommodate impacted persons or families who have been affected by the criminal justice system during the pandemic. For many impacted people, the pandemic has exacerbated the confusion of the criminal justice system. Courts face historic backlogs on cases and are even requiring some individuals to show up to court in person. Other courts are meeting virtually, but these rest on the assumption that the individuals have technology or know how to access it. The pandemic has made court communication about trials and cases more difficult for defendants and has exacerbated miscommunication about probation and parole guidelines without any COVID adaptations. It has also prevented communication between incarcerated individuals and their loved ones. And yet while communities have faced incredible obstacles, they have still organized to find ways to be involved in their litigation.
At its heart, participatory defense seeks to understand, analyze, and destabilize power. It aims to disrupt the bureaucratic power systems within the justice system and provide a more human model of engagement between the legal system and communities. For this to happen, communities need to understand and analyze their own power within the court and legal system, and courts need to prioritize community power over legal power. This becomes especially critical during the pandemic where so many people feel helpless and uncertain about the outcome of their cases. ♦
Darrin (DJ) Sims is a native of St. Louis, MO. He is a Reentry Organizer and Criminal Record Specialist at the Georgia Justice Project in Atlanta, GA.
Sims, Darrin. “Participatory Defense During the Pandemic.” Canopy Forum, April 22, 2021. https://canopyforum.org/2021/04/22/participatory-defense-during-the-pandemic/
“Bending Toward Justice — Oregon Justice Resource Center.” n.d. Oregon Justice Resource Center. Accessed March 21, 2021. https://ojrc.info/bending-toward-justice.
Devers, Lindsey. 2011. “Plea and Charge Bargaining.” Bureau of Justice Statistics. January 24, 2011. https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf.
“EVERY TUESDAY: Just[Ice] for You: Families Impacted by the Juvenile Courts – Metropolitan Congregations United.” 2020. Metropolitan Congregations United. https://www.facebook.com/MCUStLouis/. April 8, 2020. https://mcustlouis.org/events/justice-for-you-families-impacted-by-the-juvenile-courts/.
Initiative, Prison Policy. n.d. “Mass Incarceration: The Whole Pie 2020 | Prison Policy Initiative.” Prison Policy Initiative. Accessed March 21, 2021. https://www.prisonpolicy.org/reports/pie2020.html.
Jayadev, Raj. n.d. “Raj Jayadev: Community-Powered Criminal Justice Reform | TED Talk.” TED: Ideas Worth Spreading. Accessed March 21, 2021. https://www.ted.com/talks/raj_jayadev_community_powered_criminal_justice_reform/up-next?language=en.
Moore, Janet, Marla Sandys, and Raj Jayadev. 2011. “MAKE THEM HEAR YOU: PARTICIPATORY DEFENSE AND THE STRUGGLE FOR CRIMINAL JUSTICE REFORM.” Albany Law Review. June 11, 2011. http://www.albanylawreview.org/Articles/Vol78_3/78.3.1281%20Moore%20et%20al.PDF.
Neusteter, Rebecca, and Megan O’Toole. n.d. “Every Three Seconds – Every Three Seconds – Emerging Findings Institute.” Vera Institute of Justice. Accessed March 21, 2021. https://www.vera.org/publications/arrest-trends-every-three-seconds-landing/arrest-trends-every-three-seconds/findings.
Shipp, Robbin, and Nick Chiles. 2014. Justice While Black. Agate Publishing.