Movement building and challenging mass incarceration

I recently received a poem, “The New Jim Crows,” from an unlikely source: North Carolina Public Defender Danny Spiegel.

Spiegel’s poem is an outpouring of the heartache and frustrations of his occupation, of how he is forced to bear witness to the damages of mass incarceration.

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

The poem reads lonely and angry. But the irony is that Spiegel’s narrative identifies those who can stop mass incarceration: those facing incarceration, their communities and the attorneys who represent them.

Public-defense offices cannot do the job the community wants them to do because they don’t have the resources. The community then loses faith in defender offices because they aren’t doing the hoped-for job. The results? Our courtrooms have become plea mills, with a national plea rate above 90 percent, leading to mass incarceration.

Shockingly, more than 1 percent of American adults are behind bars. One in 31 adults are in some phase of penal supervision – prison, parole or probation. These staggering numbers share one thing in common: They all got there through criminal courts. And, there is at least an 80 percent probability that they were represented by a public defender.

Those numbers, if tapped, could be a game changer. Incarceration decreases dramatically when a public defender partners with his or her client’s community. Families of people entangled in the justice system come together to make strategic decisions about their cases and determine how to better utilize or improve 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 often-overworked attorney then has backup to explore options other than the one the system is counting on the attorney and client to take: the quickest path to a plea deal.

An individual facing charges is emboldened with the knowledge that the attorney 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 into changing policies. For example, in our county, public defenders weren’t staffing the misdemeanor arraignment courts. As such, individuals were going to their first court date without counsel and negotiating pleas with a judge themselves.

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 practices were.

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 county purse-holders and received funding to staff attorneys at that court. The result was a systemic change that will save thousands of people from improper conviction.

We need to shift perspective, to stop thinking of public defense as a service and to begin thinking of it as part of a movement to challenge mass incarceration. For many, public defense is viewed as an apparatus of the criminal justice system, not 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.

Public defender offices don’t speak forcefully 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 make to do the job their clients deserve, and, in doing so, can take on the court machinery of mass incarceration.

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

Raj Jayadev is executive director of Silicon Valley De-Bug, a community organizing, advocacy and media organization in San Jose, California. De-Bug hosts the Albert Cobarrubias Justice Project, an organizing and training model for families and community members to participate in their local criminal court system. To learn more, visit Time Saved, the National Legal Aid & Defender Association and Gideon at 50.

This column previously appeared in Equal Voice News.