“Participatory Defense” – Transforming the Courts Through Family and Community Organizing

by Raj Jayadev

Tony is 13 years old and just got out from 99 days in juvenile hall. He sat shyly at the edge of the table next to his mother, responding respectfully to the “congratulations” and “welcome homes” that were directed to him from strangers who knew him only through his mother’s stories and seeing his name on a whiteboard at the meeting they all attend every week. Tony is at what we’ve dubbed our ‘family justice hub’ meeting — weekly gathering of families whose loved ones are facing criminal charges. He is here to be a part of the one ceremony we have – when a family brings a loved one home by either beating the charges, receiving a reduced sentence, or a dismissal as a result of their intervention into the case — and they erase their name from the board. The room of roughly 20 people breaks into applause when Tony takes the eraser to his name, his mother thanking the community who walked with her and her son through the darkest 99 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 14th birthday at home.

If tradition holds, Tony’s mom will continue attending the meetings, and assist other families who find themselves in the position she once did. She will share with them what she learned here from others — how to partner with or push the public defender, how to dissect police reports and court transcripts, and how to build a sustained community presence in the courtroom to let judges and prosecutors know the person facing charges is not alone.

We call the approach “participatory defense” – a community organizing model for people facing charges, their families, and their communities to impact the outcome of cases and transform the landscape of power in the court system.

As incarceration rates balloon to astronomical levels – 1 out of 100 Americans are currently locked up — participatory defense may the most assessable way directly affected communities can challenge mass incarceration, and have the movement building dynamic of seeing timely and locally relevant results of their efforts. It is a penetration into the one domain that facilitates people going to prisons and jails, yet has been left largely unexplored by the ground up movement to end mass incarceration – the courts. Please believe there are Tony’s across the country waiting to come home, and communities that, if equipped, can do just that – bring him home.

We have been developing the participatory defense model in San Jose, California for six years. The approach is to bring a community organizing ethos to the otherwise isolating court experience. The meetings are now facilitated by people who first came for their own cases, volunteers like Gail Noble and Blanca Bosquez, both who have transformed from once isolated mothers forced to sit idly as their sons were chewed up by the courts, to now vocal advocates who help navigate and encourage other families.

Participatory defense meetings are not legal clinics. There are no lawyers in the room, but in many respects, that is the point. From a movement-building sensibility, the case outcome is not the only measuring stick, but also important is whether the process transformed someone’s sense of power and agency. It is why we don’t use the word “client” in our practice. Because to be a client presumes that the person is the recipient of a service or change, rather than the key actor responsible for that change. When a family first enters our meetings, the refrain we say to them is that though the system intends to give your loved one “time served” – time incarcerated and away, you can turn “time served” into “time saved.” That is, with your participation, you can bring your loved one home.

We have never outreached for the meetings. People usually hear about the meetings from other families, particularly when they are visiting their loved ones at jail. There is a common yearning to find support and navigation amongst families facing the courts, as well as an inclination to see how they can assist in changing the outcome of the case.

The tangible impact of family and community participation on cases is undeniable. Through participatory defense we have seen acquittals, charges dismissed and reduced, prison terms changed to rehabilitation programs, even life sentences taken off the table. When we tally the total number of “time saved” from all of our cases collectively over six years — by looking at the original maximum sentencing exposure someone was facing versus what the individual received after family and community intervention — we are over 1,600 years of time saved.

The approach invariably leads to finding ways for the family and community to partner with the public defender assigned the case, or push them if needed. And as the numbers bare out, this partnership of community and defender could be a real game-changer nationally. Eight out of ten of the roughly 2.5 million incarcerated would have been represented by a public defender. That means, in short, improving public defense is arguably the least talked about, yet statistically significant way, to challenge mass incarceration as we know it.

And public defenders, understanding their historic role, are currently in a national shift of consciousness to evolve their representation. They know that improving public defense is bigger than public defenders. To limit the discussion of criminal court reform to just the lawyers is like saying solving the health care crisis is only up to the doctors.

Some of the most cutting edge defender offices just held a national convening called the Community Oriented Defenders Network, with over 100 offices sharing new approaches that challenge the status quo of indigent defense. In New York, the Neighborhood Defender Service of Harlem and the Bronx Defenders are practicing holistic defense, attacking the contextual issues of poverty that force clients into the criminal justice system. In the South, Gideon’s Promise is giving elite training to defenders to face some of the toughest courts in the country. In California, the Alameda County Public Defender is now representing their clients in immigration court, and the San Francisco office has launched a system-wide study of how racial discrimination plays out in the courts – both are unprecedented approaches in state history.

But as forward thinking these advancements of public defender offices are, they are still inherently limited to the question of what more the lawyer can do, rather than those they represent.

Imagine how exponentially larger the change would be — the cataclysmic shake-up of the criminal justice system — if community-oriented defense approaches by attorneys were reciprocated by communities in the same regions practicing participatory defense.

This partnership of community and public defender offices can lead to systemic impact well beyond individual cases. Participating in cases and being able to “look under the hood” of the courts shows where community power can also be flexed to change policies and bring loved ones home, whether that be wrongful charging practices, mandatory sentences or even ensuring that public defenders are given the budgetary resources to do what the community needs them to do.

And all across the country, both the infrastructure and organizing IQ of how to practice, expand, and grow participatory defense already exists, waiting to be tapped. Participatory defense can animate, even challenge, communities to step even further into a court process that many thought was only the province of lawyers.

As such, those who can bring loved ones home from wrongful arrests, overly zealous prosecutions, or harsh sentences may be more than the expected advocates. Meaning, the most effective participatory defenders may not necessarily just be those familiar with the criminal justice system, but rather a more expanded pool of community stakeholders. In fact, in San Jose, our family justice hub meetings are not held at a criminal justice reform organization, but rather at a church and a youth media center.

The question is who is it that people confide in or call for solace when they learn they are facing a court case? Is it their family, their temple, the neighborhood association, the community organization at the corner block, their union? Any community touchstone can be a ‘family justice hub’ – simply by advocating for their loved one throughout the lifespan of the adjudication process, and simultaneously dramatically changing the numbers as to who is considered part of the movement to challenge mass incarceration.

These are community anchors that already know how to leverage collective power to challenge powerful institutions that are injuring their congregant, member, or loved one. In marginalized communities, this is how schools get fixed, police agencies get held to account, neighborhoods get invested into. Participatory defense would encourage that community organizing intelligence and strength to penetrate their local court systems, and transform it.

And giving communities who wish to advocate for loved ones entangled in the criminal justice system a linguistic anchor of “participatory defense” can allow for the evolution of the practice itself.

Make no mistake. Right now, across the country, there are parents sitting steadfast in courtroom pews in solidarity with their children facing a hearing, and church pastors writing letters to judges for an impending sentence. Such initiative evidences the ubiquitous possibility of participatory defense. If these actions though were thought of as activities part and parcel of a larger, named practice rather than isolated responses, a more profound, sustained reshaping of the criminal justice system can occur which is fueled by impacted communities.

For example, consider the maturation of community-oriented defense. The first gathering of public defenders under the umbrella of a community-oriented defense network ten years ago had only eight participating offices. At this year’s gathering, over 100 offices were represented. Public defenders certainly had practiced community oriented lawyering before they heard the term, but putting a skin around the approach, a word to call it, allowed for its development and growth.

Similarly, the larger possibility is to not think of participatory defense as a static invention or program, but rather a naming of an inclination that already exists in communities across the country, in order to advance its potency and impact. There is a forward moving power in naming an impulse.

In a slight pivot of perspective of who can be the systems changers and what they can do — the millions who face prison or jail and their communities, those waiting in line at court everyday — could shift from being fodder of the criminal justice system, to those fated to bring the era of mass incarceration to its rightful end.

Raj Jayadev is the Coordinator of the Albert Cobarrubias Justice Project (ACJP). The ACJP offers trainings on Participatory Defense to organizations and public defender offices. For more information, email: raj@siliconvalleydebug.org