Participatory Defense: Humanizing the Accused and Ceding Control to the Client

• Citation: Vol. 69 No. 3
• Publication year: 2018

Participatory Defense: Humanizing the Accused and Ceding Control to the Client

Cynthia Godsoe

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Participatory Defense: Humanizing the Accused and Ceding Control to the Client

by Cynthia Godsoe^*

I. Introduction

This contribution to the Mercer University School of Law's 2017 Symposium on Disruptive Innovation in Criminal Defense discusses two interrelated defense strategies: humanizing the accused and contextualizing their actions in a society plagued with racism and poverty, and ceding substantial control of the defense strategy and legwork to the accused, and their family and friends. The first strategy should not be, but is, disruptive; in a just (and sane?) criminal legal system, this would be a regular part of the process. In our current vast system of social control, however, focusing on the people in the system as anything other than numbers or "bad actors" is often not the norm, even by the attorneys defending them. The second strategy, empowering defendants' families to assist or even challenge defense attorneys, is truly radical. It shifts notions of expertise and questions deeply-embedded power structures between attorneys and clients. As such, it has the potential to not only shake up the public defense framework—one in which, the clients, low-income by definition, have particularly little

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power—but also to reinvigorate the attorney-client relationship more broadly.¹

To illustrate these disruptive strategies, this Article centers on the participatory defense movement. The movement seeks to "transform the landscape of power in the court system" by training the families and friends of the accused in how the criminal system works and how to help with their defense.² Rather than merely relying on defense attorneys or other professional advocates, participatory defense sharply highlights the defendant as a person embedded in a community and focuses on empowering that community to successfully impact both individual cases and the broader court system.³ As the movement's founder, Raj Jayadev, describes it, his community organization knew how to protest against over-criminalization and police misconduct but "[was] relinquishing power, arguably, at the most critical moment, which is when a case hit the courts . . . . Our thought was, 'We're not lawyers. That is not our arena to make change.'"⁴ They decided to alter this perception and remedy this structural exclusion by recognizing the accused and their communities as sources of knowledge, defense strategies, and the potential to transform the criminal law system. As "change agents," defendants and their families would cease being the objects of a case and would become autonomous actors and subjects. The movement has met with great success in individual cases and is also leading to some larger reforms.⁵

Despite this success, the movement was not initially welcomed with open arms by all public defenders.⁶ Indeed, the movement organizers

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experienced "pushback in every scenario."⁷ Some defenders feared additional tasks added to an already large workload, or confidentiality or privilege violations. Others raised the risks to effective individual defense in expanding client agency, and, particularly, to loosening the concept of a client to recognize that a defendant comes to her case in a particular context with family, friends, and community members.⁸ These risks to confidentiality and case outcomes are real, as I elaborate further below, but they exist in every case, not just in participatory defense cases. I suspect that the resistance has, at least in part, had to do with the movement's central tenet of shifting expertise and case direction away from the lawyers and other professionals, something I say as a former defender myself.⁹ As I outline further below, the structure of the criminal system, coupled with the disproportionate poverty and political powerlessness of most defendants, makes public defenders less accountable to their clients than most attorneys. Indeed, defendants must rely primarily on their attorneys' own zeal and internalized desire to practice ethically, rather than any external controls such as bar discipline or judicial action.¹⁰ For although they seek to defend the accused, and usually, to reform the criminal law system, defenders are still part of the power structures that exclude non-lawyers and non-professionals from the court systems and silence the people most affected.¹¹

Changing an institution is difficult, and those seeking to alter public defense practice face the intertwined challenges of bureaucratic

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resistance to change and the common, if often unconscious, desire of lawyers to hold onto their privilege over lay people, including their clients.¹² The focus on client agency in participatory defense means that tension between mainstream practice and newly empowered clients is not just likely, but actually inevitable—baked into the model itself. The movement organizers have been tremendously successful at overcoming these concerns, demonstrating that participatory defense can actually reduce risks and increase attorney resources. Tellingly, and to the surprise of the founders, public defender offices, initially wary, are now reaching out to them and embracing what participatory defense can offer.¹³ Yet, the movement offers more than resources and better outcomes; instead its vision of zealous advocacy and client autonomy represents an overdue shift in power back to the client and reveals the tension between practice or ethical risks and participatory defense to be overstated.¹⁴

This Article unfolds in four parts. In Part II, I describe the participatory defense model and its focus on humanizing the accused, recognizing "lay expertise," and shifting control. Part III examines potential reactions by defenders to the movement, including both concern over risks to clients and case outcomes, and resistance to change on both an institutional and individual level. In particular, the goal of the movement—to empower clients to assist, direct, and even challenge their appointed counsel—shakes up the typical rubric of "lawyer as expert" driving the representation. In Part IV, I argue that, despite these risks and practice challenges, defenders should incorporate participatory

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defense tenets into their practice. Indeed, they must because the model is consistent with, even required by, the ethical rules governing lawyers. I conclude that participatory defense has the potential not only to transform the criminal law system, but also to change the defender practice model, and return us to the zealous advocacy and client autonomy at the heart of lawyering.¹⁵

II. The Participatory Defense Model

Founded within the last decade, participatory defense is a grass-roots movement to empower families and communities in their loved ones' criminal defense and organize both for individual case outcomes and systemic change.¹⁶ The movement's founder, Raj Jayadev, with co-authors Janet Moore and Maria Sandys, describes the goal of the movement as follows:

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. [It] 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.¹⁷

To this end, the movement trains families and community members in gathering evidence; dealing with police, judges, and other court players;

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making social biography videos; and other skills to best help their loved ones being charged. They also assist them to "work strategically" with overworked and under-resourced defense attorneys to ensure zealous advocacy in their family members' cases.¹⁸ Finally, participatory defense also encourages people to connect individual cases to larger systemic problems in the criminal law system, including racial bias and over-incarceration. The movement has spread to a number of locations throughout the country and has had considerable success in reducing sentences, lowering charges, and raising awareness of over-criminalization.¹⁹ Despite this, as discussed further below, public defenders have not always been as welcoming as one might expect.

A. Humanizing and Contextualizing the Accused

A central tenet of participatory defense is humanizing defendants and contextualizing their actions. As I noted earlier, this strategy should not be disruptive—juries and judges should consider those before them as individual people embedded in a community, who come to the criminal system with unique histories and potential for rehabilitation.²⁰ Unfortunately, our current system often does not allow for this, but instead, operates as an assembly line.²¹ Humanizing individual accused people enables decision-makers and players in the system to understand the defendants and account for past trauma or other experiences that can

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help to explain their actions and shed light on culpability and appropriate punishment.²²

Participatory defense trains family members and others to make "social biography" videos, depicting the daily life and community of accused people through workshops on topics such as "Effective Strategies for Telling Client's Story through Video." These videos force prosecutors, judges, and other decision-makers to look at defendants as individual people and not just numbers in a vast system. The videos also reveal those in the system to be multidimensional and more than just "bad acts." As one trial judge put it, these videos "humanize defendants, destroy [often racial] stereotypes, and leave [us] with a far better understanding of the persons standing before [us]."²³

The videos have been very effective in individual cases. One defender noted that the court explicitly referenced the...