Money kept them in. Black love got them out. On Mother’s Day 2017, grassroots organizations across the country coordinated together to bail out more than 100 women and caregivers in nineteen different cities. Photographs and videos from Mama’s Bailout Day show activists greeting women of color with hugs, flowers, and support at the exit doors of local jails. A woman in Charlotte says through tears: “I can’t believe it, you don’t even know me, and you came to me . . . ” In the words of Mary Hooks, co-director of Southerners on New Ground (SONG), who helped conceive, coordinate, and implement the mass action, it was a form of “abolition in the now” that brings both freedom to individuals and attention to “the slow death of our families and communities.”1
Mama’s Bailout Day echoed the longstanding work of community bail funds, a tactic in which groups come together to post bail for strangers and assert a communal interest in a defendant’s freedom. The criminal justice system tends to isolate defendants, making them reliant purely on family or close friends (where available). With mass bailouts and community bail funds, groups involved aren’t on the side of defendants as friends or even acquaintances, but rather as members of a larger social movement in support of decarceration and reinvestment in poor communities of color. They draw attention to a criminal justice system that funnels people in and out of jails because of their poverty. Community bail funds demonstrate that the entire logic of bail and pretrial detention—that money bail is a necessary incentive for someone to come back to court; that the “community” is better off when someone is detained pretrial—rests on shaky ground. The result is profoundly destabilizing, not just for the institution of money bail, but also for the larger dynamics of power and control in the criminal courthouse.
One of the many forbidding aspects of the criminal justice system is its insistence on order and professionalism: a strict separation of who is allowed to speak about what, and who is allowed to be where. The stentorian narration over the opening credits of Law and Order has laid it out plainly for generations: “The people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders.” According to the mainstream conception of how democratic criminal justice works, people participate in their local justice systems through voting, sitting on juries, or attending community policing sessions. After they have given local prosecutors and police chiefs their input, the people are then encouraged to sit back and let their representatives do their jobs of seeing justice done.
But participation in criminal justice does not end with elections. Every day, marginalized groups living in the shadow of the carceral state participate in criminal justice from the bottom up. To see this participation in action, one need only walk the streets of neighborhoods with a large police presence or enter a crowded local criminal courtroom. Protesters surround a van in which police have detained a young black man; a participatory defense team creates a biographical video about a defendant; a community bail fund posts bail for a stranger; a group of courtwatchers sits in the audience wearing shirts printed with a defendant’s picture; incarcerated people engage in a labor strike. The value of these moments of communal intervention is not participation for its own sake, but rather the potential to build power and shift legal meanings. Writing in The New Inquiry, activist Mariame Kaba described the choice starkly: “Petitioning the state which is set up to kill us for help and protection can be untenable and therefore forces us to consider new ways of seeking some justice.” As these affected communities have fashioned their own ad hoc forms of communal intervention on behalf of the powerless, they have reinvented the place of community in local justice.
One of the major tactics of recent years has been the rise of courtwatching groups. Affiliated with larger social movements, these groups often gather volunteers to document everyday proceedings in local courts—bond hearings, arraignments, plea bargains—and report to the public the results of their observations. These community groups become self-appointed watchdogs who can present the results of their observations in their own words, on their own terms, and independent of official accounts of policies and trends. Similarly, community groups involved in “participatory defense” join with families, friends, neighbors, and allies of defendants to learn about the facts and procedures of individual cases, perform investigations, and ultimately aim to upend the traditional power dynamics of everyday criminal justice. Courtwatching groups help define the proceedings through their presence, reminding courtroom players that each individual case is connected to larger aggregate harms on families and neighborhoods.
A similar power shift occurs when poor people and people of color engage in organized copwatching of police officers on the streets of their neighborhoods. Like other methods of documenting police conduct—for example, police-worn body cameras—copwatching deters police misconduct in the moment and promotes police accountability after the fact. But the tactic of organized copwatching does more than deter and document; it also shifts power, creates agency, and sparks legal imaginations. Copwatchers engage with legal and constitutional principles at the same time that they enforce them, communicating to police officers in the moment that their conduct will influence future dialogue about the limits of police violence. As with courtwatching, copwatchers’ control over their own actions, data, and participation turns the tables on the traditional control that state officials possess to dictate the terms of public participation, and, by extension, to define the public to whom the system is accountable. Copwatchings, courtwatchers, and bail fund activists tell police officers and the prosecutors: you do not represent us.
America’s criminal justice system is antidemocratic in at least three distinct senses. First, the system is run and maintained by privileged insiders: police, prosecutors, defense attorneys, judges. There is little transparency, participation, or day-to-day accountability in today’s police precincts and criminal courthouses, and the result is that formal communal input into everyday justice has all but disappeared. This is especially true in the world of plea bargaining, in which fewer than 5 percent of criminal cases end in a trial of any kind. Second, even for the very few ways in which ordinary citizens do participate in criminal justice, the unequal distribution of political power means that the resulting criminal laws and enforcement are rarely responsive to the interests of the poor populations of color most likely to come into contact with the system. The mass incarceration and supervision of poor communities of color only exacerbate these political inequalities: many of the people affected by mass incarceration are barred from voting, and their neighborhoods experience a reduction in political participation and resources. And third, when marginalized populations do participate in democratic processes, their participation is often muted by those processes.
When it comes to remedying the distrust, disengagement, and disenfranchisement of marginalized groups, the instinct of elites is often to include these groups in democratic fora in which their voices can be heard. From stakeholder meetings to listening sessions to community justice panels, these state-driven processes seek the input of individuals who have historically been shut out of the creation and execution of criminal justice policies. These well-meaning mechanisms of participation tackle the first two layers of democratic exclusion: they increase public input into criminal justice overall, and they deliberately seek out the voices of the marginalized in doing so. In doing so, they are not always sufficiently attentive to the third layer of exclusion—what Iris Marion Young calls “internal exclusion”—and to the ways in which marginalized populations often remain politically powerless despite the creation of democratic institutions meant to facilitate their participation. For example, in the summer of 2016 the NYPD sought public input via an online questionnaire into a new body camera policy. Although thousands of New Yorkers responded, 60 percent of those responses came from white residents, although only 33 percent of the population is white. And research shows that when police departments seek input from “stakeholders” at community meetings, officers leading the meetings tend to respond only to those opinions with which they already agree.
Members of these communities are plenty familiar with this internal exclusion, and have been working to push back against it. Consider the work being done by grassroots groups in Chicago to critique the city’s community policing program, the Chicago Alternative Policing Strategy (“CAPS”). Community policing is an idealized form of participatory, consensus-based democracy in action. Although the term covers a variety of policing approaches, community policing usually refers to efforts to include local residents in regular collaborative meetings to solicit input on policing priorities. Community policing initiatives can include education through community meetings, placing community representatives on advisory councils, and enlisting the help of residents in crime detection and prevention. In October 2015, President Obama praised Mayor Rahm Emmanuel’s community policing strategy for “forming new partnerships with ministers, putting more officers on bikes and on foot so they can talk with residents.”
That very same month, local activists issued their own “Counter-CAPS Report.” These activists collected their own data surrounding the operations of CAPS and concluded that Emmanuel’s “‘community policing’ is the superficial involvement of select community members in providing police with legitimacy.” This local organization’s work—gathering their own data about the effects of Chicago’s community policing program and publicizing their findings—is itself an example of a form of participation outside of state mechanisms. And the report lodges two central critiques of the push for consensus through “community justice”: that community justice excludes, both internally and externally, the most marginalized from its participatory mechanisms; and that, in doing so, it fails to appreciate more transformative remedies to our criminal justice ills.
Existing options for criminal justice participation focus too heavily on the decorum of deliberation. Much like the system they protect, they equate disruption with criminality and reinforcing the inequalities that reforms try to dismantle. Relying on deliberation and consensus ignores the ways in which our current criminal justice system relegates African-Americans and other marginalized populations to non-democratic subjects—not just through literal disenfranchisement of individuals with criminal records, but also through doctrine, policy, and rhetoric. And a focus on seeking consensus may lead us to privilege discourse that repeats rather than re-envisions our reigning ideas of what criminal justice should look like.
Those of us interested in dismantling the architecture of mass incarceration need to make the crucial conceptual shift that movement actors have already made: that direct participation on the side of the defense is not just about individual defendants, but is also about larger democratic engagement, about pushing for responsive justice. This is an “agonistic” idea of criminal justice: a specific form of democratic participation that values contestation and resistance at the same time that it recognizes the need for lawyers, police officers, judges, and other system actors to represent public interests and see justice done. This vision can comfortably embrace electoral work, such as recent efforts in Philadelphia to center formerly incarcerated individuals as leaders in the effort to get out the vote and elect a progressive candidate for District Attorney. But it places front and center methods of participation that go beyond the traditions of voting and serving on juries to include bottom-up interventions in everyday justice.
The dominant ideology of the criminal justice system, however, does not account for these interventions. Part of what is at work in the rules of the criminal process, whether it is the rules that police officers are told to follow or the rules of the courtroom, is a sense that neutrality and the rule of law must take precedence over the messy voices of protest and resistance. If we can start to conceive of the criminal process, though, as a space in which there are multiple moments at which communal intervention is possible, then we can start to shift both the process on the ground and how we talk about that process. And, by doing so, we can try to dismantle the antidemocratic pathologies that plague the current system, creating and maintaining Fergusons throughout the country.
This essay is drawn in part from an article forthcoming in the Northwestern University Law Review. ↩
