Participatory Defense: Shifting the Courtroom ‘Balance of Power’

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Jason Del Agujila

Jason Del Aguila of VOCAL-NY. Photo courtesy The Appeal

VOCAL-NY, a Brooklyn-based grassroots organization seeking to empower low-income people affected by substance use disorder, recently launched a participatory defense program aimed at teaching people how to avoid getting ensnared in a criminal justice system that often works against them.

The goal is to combine traditional harm-reduction services, such as syringe exchange and HIV and hepatitis C testing, with less tangible resources, such as knowing how to de-escalate an encounter with law enforcement.

Participatory defense is a companion to Court Watch NYC, a collaborative program between VOCAL-NY and public defenders that trains community members to observe and document trends in criminal court arraignments and hearings.

“I realized we needed a program that did more than Know Your Rights and ‘CopWatch’ trainings, which focus on filming police encounters, de-escalation and documenting, and don’t necessarily go through all the court processes,” explained Jason Del Aguila, who is in charge of the participatory defense effort.

“The idea was, how do we help you navigate through the everyday legal gauntlet, from the streets to the courts, and even after doing time?

“We’re creating community efforts to keep people from becoming another victim of an injustice system.”

He says that often means helping participants understand court documents and organize support in advance of hearings, but more often the aim is to prevent them from getting arrested in the first place.

“I’ve had people who say, ‘It doesn’t matter, the cops can do whatever they want,’” Del Aguila said, “So I teach them, this is what you can do to prove that they did something wrong.”

Participatory defense is not a new concept, or even a single unified program with a defined set of protocols. Modeled on Silicon Valley De-Bug, a community advocacy and storytelling organization founded in 2001 in San Jose, the movement encourages family and friends of the accused to help with their defense.

According to the Albert Cobarrubias Justice Project, which promotes the national expansion of participatory defense, the goal is to provide additional leverage to overburdened public defenders.

Since about 80 percent of felony defendants in state court systems rely on public defenders, criminal justice reformers say participatory defense has the potential to “change the balance of power in the courts.”

Over the past decade public defender organizations in more than a dozen municipalities, including Philadelphia, Baltimore, Memphis, and Birmingham have established some form of a participatory defense program.

But some advocates say that the stigma associated with drug use and substance use disorder has promulgated a two-tiered system of advocacy that excludes users of drugs like heroin and crack cocaine.

“In progressive circles, there’s always been this sort of distinction between the deserving poor and the undeserving poor,” said Paul Cherashore, an activist who spent more than two decades working in harm reduction circles in New York and Philadelphia.

On the Bottom Rung: Drug Users

“Drug users have always held this bottom rung when it comes to providing aid or advocacy.”

VOCAL-NY’s program is among the first in the nation to combine traditional harm-reduction services with formal participatory defense training.

“As a harm-reduction agency, we do everything we can to reduce the harms associated with drug use,” said Alyssa Aguilera, co-executive director of VOCAL-NY. “Most of the time that means providing sterile syringes to prevent disease transmission or teaching people how to reverse an overdose with Naloxone.

“But it can also mean supporting people when they get arrested and helping them navigate the criminal legal system through participatory defense. For our participants, most of whom also struggle with poverty and homelessness, it’s often the police and prosecutors that cause the most harm, not their drug use.”

VOCAL-NY’s Del Aguila leads its participatory defense trainings two days per week, where he encourages people to share their experiences with the criminal justice system. His seminars also include teaching clients how to organize court support for hearings, and how to identify and protest unjust policing patterns like ethnic profiling or stop-and-frisk.

He also instructs VOCAL-NY participants on their legal rights and walks them through defusing encounters with police.

“Anything you say or do can and will be used against you, so don’t say shit,” Del Aguila said. “Whether you’re holding drugs or not, ask if you are being detained, and if the answer is no, then leave immediately.

“And if you’re asked to consent to a search, answer no, and say it loudly and clearly so any witnesses can hear.”

christopher moraff

Christopher Moraff

“I try not to make it about having a competition with the cops because you’re gonna lose even if you’re right,” he adds. “You’re trying to win against someone who has the odds stacked for them.”

See also: Friends in Court: The Growing Impact of Participatory Defense

Christopher Moraff is a Philadelphia-based freelancer who writes on criminal justice, policing and civil liberties. A contributor to The Crime Report, he has also written for Al Jazeera America, The Daily Beast, and The Philadelphia Inquirer, among others. This story was published earlier in The Appeal, and is reproduced with their permission. Chris welcomes readers’ comments.

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