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Movement Building and Challenging Mass Incarceration

While any effort to stop mass incarceration must be expansive in scope and size, it ultimately has to be accessible to those directly affected.

Part of the Series

I recently received a spoken word piece called “The New Jim Crows” from an unlikely source – a public defender in North Carolina named Danny Spiegel. The title pays tribute to Michelle Alexander’s groundbreaking book: “The New Jim Crow Mass Incarceration in the Age of Colorblindness.”

Spiegel’s poem is an outpouring of the heartache and frustrations of his occupation – how he is forced to bear witness to, and at times feel complicit in, the damage of mass incarceration.

The refrain goes:

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, Spiegel passionately tells the story of his clients – the young teen Melissa, who is tracked from foster care into jail, the schizophrenic who ends up locked in a cell rather than in treatment, the broken families of the failed war on drugs.

As poetry often does, “The New Jim Crows” feels lonely and angry, forced out of Spiegel 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 irony, though, is that Spiegel’s narrative identifies the actors who can – if they come together as a movement – stop mass incarceration: that is, those facing incarceration, their communities and the attorneys who represent them.

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

The staggering numbers of Americans behind bars – 1 out of every 100 – share one thing in common: They all got there through the same delivery system – our criminal courts. And, as the numbers bear out, there is at least an 80 percent probability that they were represented by a public defender.

Those numbers are a movement sweet spot: numbers that, if tapped, could be a game changer in the effort to challenge mass incarceration. But such a movement requires creating a new dynamic between public defenders and the communities of their clients.

At Albert Cobarrubias Justice Project (ACJP), a program of Silicon Valley De-Bug in San Jose, Calif., we have seen how incarceration decreases dramatically when a public defender partners with his or her client’s community. In De-bug’s organizing model, families who have loved ones entangled in the justice system come together to make strategic decisions about their cases and determine how to better utilize, partner with or improve the representation of their attorney.

The families become extensions of the legal defense team – scouring police reports, discussing defense strategy, creating mitigation material and maintaining a presence in the courtroom. The attorney, often overworked with “caseloads in the infinities,” then has backup to explore options other than the one the system is counting on the attorney and the client to take – the quickest path to a plea deal.

An individual facing charges, emboldened with the knowledge that the attorney is working with, or even being held accountable by, the 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 outcome of 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 that public defenders are given the resources to do what the community needs them to do.

For example, in our county, 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 the system 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.

ACJP families and the local civil rights community called on the public defender to staff the misdemeanor arraignment court. Armed with the knowledge that the community was behind her, the public defender went to the county purse-holders and got her attorneys at that court. The result is a systemic change that will save thousands of people from being marred for life with a conviction.

Now, to ask a movement question: “Who would march to have the public defender’s office staff the misdemeanor arraignment court?” One would expect such a question to meet with silence. But asking, “Who would march to stop thousands of poor people from having their rights violated on a daily basis by the criminal justice system?” 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 communities, public defense is viewed as an apparatus of the criminal justice system, not as an extension of the movement to reform the system. It’s why we hear terms like “public pretender” commonly used in communities affected by mass incarceration and why, 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 do not have the resources they need. The community then loses faith in defender offices because they are not doing the job the community hoped for. The result? Our courtrooms have become plea mills, with a plea rate is above 90 percent nationally, leading to mass incarceration.

Public defender offices, which can be insular in nature, don’t speak loudly enough to demand resources and point out the systemic inequities leading to their high caseloads. But communities can advocate the changes public defenders need to do the job their clients deserve and, in doing so, can take on the court machinery of mass incarceration not only in individual cases but in governing policies.

It is a matter of reciprocity: That is, the community pushes for more resources for public defender offices. In turn, the public defender offices better protect the rights of community members.

The irony of mass incarceration is that the ballooning numbers of those locked up, currently more than 2 million, are 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 farther then the people waiting in line at your local county courthouse.

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