The Untapped Movement: Why Challenging Mass Incarceration Hinges Upon a New Dynamic Between Communities and Public Defenders

By Raj Jayadev

I recently received a spoken word piece called The New Jim Crows from an unlikely source – a public defender named Danny Spiegel from North Carolina who did a poem on the frustrations of his job. It was an outpouring of the heartache of his occupation – how he is forced to bare witness, and at times feel complicit, to the damage of the system we now call mass incarceration. One repeated refrain went:

Yeah I'm a public pretender,

pretending to be defending to the best of my ability,

trying not to be a liability

when my caseload's in the infinities

Through rhyme he passionately tells the story of his clients – the young teen Melissa who is tracked into jail from foster care, the schizophrenic who gets locked up rather then getting treatment, the broken families of the failed war on drugs.

As poetry often does, it feels lonely and angry, forced out of him from a place of isolation. And often as poets do, he speaks to the sentiments of many who think they alone carry those emotions. The reality though is in his pissed off narrative, Danny is actually identifying the actors that can ultimately stop mass incarceration if they came together as a movement – those facing incarceration, their communities, and the attorneys who represent them.

While any effort to stop mass incarceration needs to be expansive in scope and size, for it to take on the dynamical qualities of a movement, it ultimately has to be accessible to those directly impacted. Challenging mass incarceration is as much about the actions of Danny and Melissa, as it is about the words of Attorney General Eric Holder.

Every single person that makes up that staggering number of 1 out of 100 Americans behind bars, have one thing in common: they have been sent their through the same delivery system: our criminal courts. And as the numbers bare out, there is at least an 80% probability that he or she was represented by a public defender.

That means creating a new dynamic between public defenders and the communities of their clients. This is a movement sweet spot: an area that, if tapped, could be a game changer in the effort to challenge mass incarceration.

Having created an organizing model for families who have loved ones entangled in the justice system on a local level at Silicon Valley De-Bug, we have seen how incarceration decreases dramatically when a defender can partner with the community of the client. Every week at our community center, families come together to strategize on their cases, and determine how to better utilize, partner, or improve the representation of their attorney. Families become extensions of the legal defense team – scouring police reports, discussing defense strategy, creating mitigation material, and having a presence in the courtroom. The attorney, often over-worked with “caseloads in the infinities,” then has back up to explore another option that the system of mass incarceration is counting on them taking – the quickest path to a plea deal.

And individuals facing charges, emboldened with the knowledge their attorney is working with, or even been held accountable by community, is less likely to be coerced into that plea deal. Family and community participation changes the balance of power in the courts and consequently, the outcomes of cases.

And for the community, who often feel courtrooms are only the province of lawyers and judges, their involvement in court proceeding reveals policy aims that target mass incarceration on a larger scale, not just individual cases. Participating in cases and being able to “look under the hood” of the courts shows where community power can be flexed to change policies and bring loved ones home -- whether that be wrongful charging practices, mandatory sentences, or even ensuring the public defenders are resourced to do what the community needs them to do.

For example, in our county in the Bay Area, public defenders were not staffing the misdemeanor arraignment court. As such, individuals were going to their first court date and negotiating their pleas with a judge without counsel. As a community, we assumed that was just the way things worked. It wasn’t until our community organizing work took us to courts in other counties that we realized how injurious our county’s practice was. We called on the public defender to staff that courtroom, and she went to the county purse-holders, armed with the knowledge the community was behind her, and got her attorneys at that misdemeanor arraignment court. The result is now thousands of people who otherwise would be marred for life with a new conviction are freed from that burden due to a systemic change in the courts.

Now, to ask a movement question, “Who would march to have the public defender’s office staff misdemeanor arraignment court?” One would expect such a question to meet with silence. But to ask, “Who would march to stop thousands of poor people from getting their rights violated by the criminal justice system on a daily basis?” could animate the organizing power of a community waiting for an opportunity fight back.

The difference is based on a shift of perspective, from thinking of public defense as a service, to thinking of it as part of the movement to challenge mass incarceration. For many impacted communities, public defense has been thought of as an apparatus of the criminal justice system, not as an extension of the movement to reform it. It’s why there are terms commonly used like “public pretender” and when we ask families who come to us who their attorney is, they say, “We don’t have an attorney. We have a public defender.” It becomes a self-fulfilling prophecy.

Public defense offices cannot do the job the community wants them to do because they are not equipped nor have the resources they need. The community then loses faith in defender offices because they are not doing the job they hoped for. The result is our courtrooms becoming plea mills, with a plea rate above 90% nationally – thus leading to the numbers of mass incarceration.

But communities can advocate for the changes public defenders need to do their job, and their clients deserve, and in doing so can take on the court machinery of mass incarceration in individual cases and governing policies. Offices, insular often in nature, don’t speak loud enough to demand resources and point out the systemic inequities leading to the high caseloads. It is a matter of reciprocity.

The irony of mass incarceration is that the ballooning numbers of those locked up, currently over 2 million, is simultaneously swelling the ranks of the movement that can take it down. To see the launch pad of such a movement, one need not look any further then the people waiting in line at the local county courthouse.

About Raj Jayadev

Raj Jayadev is the coordinator of SV De-Bug and coordinates the Albert Cobarrubias Justice Project, an organizing model for families and communities to impact their local court systems. He is an Ashoka Fellow.

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