Make them hear you: participatory defense and the struggle for criminal justice reform.

• Author: Moore, Janet
• Position: How Do We "Do Data" in Public Defense?

1. INTRODUCTION

   This article introduces participatory defense as a powerful new model for reforming public defense and challenging mass incarceration. Participatory defense amplifies the voices of the key stakeholders--people who face criminal charges, their families, and their communities--in the struggle for system reform. Participatory defense empowers these key stakeholders to transform themselves from recipients of services provided by lawyers and other professionals into change agents who force greater transparency, accountability, and fairness from criminal justice systems.

   As a grassroots response to the public defense crisis, participatory defense offers new insights and perspectives that are unavailable through reform models described as client-centered, holistic, and community-oriented. (1) To be sure, when those models are supported with adequate resources for implementation, they can dramatically improve the "meet-'em-and-plead-'em" norms that infect many overloaded, underfunded public defense systems. (2) Nevertheless, participatory defense examines justice systems from a different set of perspectives--from the perspectives of the people who are facing charges, their loved ones, and their communities.

   Part II introduces the principles and goals of the participatory defense movement. Parts III through VI analyze participatory defense from doctrinal, theoretical, and empirical perspectives. Part III connects participatory defense with the crisis-ridden constitutional history of the right to counsel, and with that doctrine's deep roots in the due process right to be heard. Part IV frames participatory defense within a democracy-enhancing theory of criminal justice. This approach emphasizes equality in the generation and administration of the governing law, and pairs effective self-governance with a shrinking carceral state. Part V applies these insights to recent reform litigation and policy advocacy, arguing that reformers should invoke due process and use new evidence of system failure that is exposed by the participatory defense movement. Part VI offers additional ways to obtain that evidence through rights-information and satisfaction-feedback tools.

2. PARTICIPATORY DEFENSE: COMMUNITY ORGANIZING FOR REFORM

   Participatory defense is a powerful community organizing model for people who face criminal charges as well as for their families and their communities. The term was coined by Raj Jayadev, a coauthor of this article, and describes a collective, grassroots effort begun in 2007 to improve public defense and check the spread of mass incarceration. The movement's success has led Jayadev to train defenders and communities around the country on its core principles and strategies, with the goal of embedding the approach into a national, reform-oriented culture. This article aims to spread the message while offering doctrinal, theoretical, and empirical analysis of this new approach to justice reform.

   The first step of the participatory defense movement is for people who face criminal charges, their families, and their communities to transform themselves from service recipients to change agents. As discussed below in Parts II.A-C, they do so through three forms of mutual support. The first form of support is the family justice hub, where community members guide and coach each other through the stress, confusion, and frustration of confronting criminal charges. The second form of support changes "time served to time saved" as community members help defenders obtain the best possible outcome in specific cases. The third form of support is public protest and celebrations, through which community members expose systemic flaws, force systemic change, and honor transformational successes.

   These core principles and strategies of participatory defense are an evolution in public defense. They allow people facing charges, their families, and their communities to reciprocate and strengthen efforts of client-centered, holistic, and community-oriented defenders. They do so in two interrelated ways. First, participatory defense shifts the focus more fully from the agency of lawyers and other professionals to the agency of people and communities harmed most directly by the public defense crisis. Second, participatory defense offers a broader set of goals.

   Participatory defense aims to rebalance power disparities in criminal justice systems. The movement forces greater transparency, accountability, and fairness from those systems for the people who have disproportionately high system contact, but disproportionately little voice in system creation and administration. Pivoting perspective on the identity of systems changers and what they can do--empowering the millions who face prison or jail each day along with their families and their communities through participatory defense--can transform people from fodder being fed into the criminal justice machine into change agents fated to bring the era of mass incarceration to its rightful end.

   1. Family Justice Hubs

      The best way to understand participatory defense is to participate. Opportunities arise each week during family justice hub meetings. These meetings occur at community centers and churches, and are coordinated through the Albert Cobarrubias Justice Project of Silicon Valley De-Bug in San Jose, California. DeBug is a cutting-edge collaborative through which people use media, entrepreneurship, and politically-savvy advocacy to improve lives, strengthen communities, and promote justice reform. (3)

      On entering a De-Bug family justice hub meeting, you might see thirteen-year-old Tony sitting shyly at the edge of a conference table next to his mother. Tony was just released after ninety-nine days in juvenile hall. He responds respectfully to the "congratulations" and "welcome homes" directed to him from strangers around the table. Although these supporters have never met Tony, they know him through his mother's stories and from seeing his name on the family justice hub whiteboard.

      These meetings connect families whose loved ones are facing criminal charges. Tony is participating in the first of several ceremonies that were created by and are distinctive to the participatory defense movement. When a family brings a loved one home by helping defense lawyers obtain dismissals, acquittals, or a reduced sentence, the loved ones erase their names from the whiteboard.

      The crowd of twenty people breaks into applause when Tony takes the eraser to his name. Tony's mother thanks the community who walked with her and her son through the darkest ninety-nine days of their lives. She is in tears. Tony was facing years of incarceration, but due to her advocacy and the public defender's lawyering, her son will be able to have his fourteenth birthday at home.

      If tradition holds, Tony's mother will continue attending the family justice hub meetings. She will help other families who find themselves in the frightening, stressful, and confusing position she once occupied. She will share with them what she learned from others in the participatory defense movement.

      There is tremendous power in bringing a community organizing ethos to the otherwise deeply isolating experience of facing charges in a criminal or juvenile courtroom. The family justice hub meetings are now facilitated by people who first came for their own cases or cases involving their loved ones. The process has transformed volunteers like Gail Noble and Blanca Bosquez. Once isolated, anguished mothers who felt forced to sit idly as their sons were chewed up by the courts, Gail and Blanca are now vocal advocates who encourage other families and help them navigate daunting, complicated court processes. They travel and train communities across the country, speaking as both mothers and organizers who have learned the power and possibility of participatory defense.

      In light of those developments, it is important to emphasize that the participatory defense movement has never conducted outreach to drum up attendance at the family justice hub meetings. People usually hear about the meetings from other families, often when they are visiting their loved ones at the local jail. There is a common yearning among these families for support and help navigating criminal justice systems. They also share an inclination for discovering ways to help change the outcome of their loved one's case.

      It also 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. From a movement-building perspective, the case outcome is not the only measuring stick. Instead, it is equally or even more important that the process transform each participant's sense of power and agency.

      For this reason, the participatory defense movement shuns the word "client." That label reduces people into recipients of services, actions, or change provided or caused by another. In the participatory defense model, the key actors responsible for creating change are the people who face charges, along with their families and their communities. Therefore, when families first enter a justice hub meeting, they hear a consistent refrain. While the system intends to give their loved ones time served--that is, time incarcerated and away from family and community--they can turn time served into time saved. Participatory defense empowers families and communities to bring their loved ones and neighbors home.

      Through the family justice hubs, participatory defense is therefore a pay-it-forward training for families and communities in how best to partner with or push the lawyers appointed to defend their loved ones. Participants learn to dissect, use, and challenge information in police reports and court transcripts. They learn to create social biography videos and use other media to obtain fairer and more productive case outcomes. They learn to engage in effective...