No. 2

“We Stopped Him From Going to Prison!”

Groups of people are showing up to collectively contest the criminal legal system.

Diana Ejaita

Imani Mfalme-Shu’la identified herself as “freedom fighter” from a young age. Her mother, Paula P. King Booker, was vice president of the local Knoxville, Tenn., chapter of the NAACP. When Mfalme-Shu’la was a young girl, an investigation into the death threats phoned to their home revealed that local Ku Klux Klan members were targeting Booker. Undeterred, Booker took part for decades in campaigns for desegregation and equal pay. Mfalme-Shu’la says that as a young girl watching her mother’s resilience, she had a sense that “there were no limits to where you can take the fight” for equality and justice.

No limits, that is, until it came to the criminal legal system, a constant presence in her life. Four out of five of Mfalme-Shu’la’s brothers spent time in prison. She remembers their absence as a continual silence in her home growing up. It wasn’t just her brothers: “Everybody I knew was affected by the system.” When Mfalme-Shu’la was in her mid-20s, she was driving on the east side of Knoxville with a friend when officers pulled her over and, with the excuse that they smelled marijuana, searched her car, finding a gun in the glove compartment. Mfalme-Shu’la was booked and charged with misdemeanor weapon possession.

Even though her case was eventually dismissed — a judge found that the search of the car was unlawful — Mfalme-Shu’la was told to sign a piece of paper agreeing to forfeit her property. Mfalme-Shu’la followed directions and signed the paper. But she had a sense that something was deeply wrong about this, something connected to the way that police, courts, and prisons wove through her entire life, neighborhood, and the Black community in Oak Ridge and Knoxville. Although her gut told her that there were systemic problems with these experiences and those of other people of color in Tennessee, she “just did not know of any other way to do anything about it, except for hire the most expensive attorney and pray about it.”

That changed in 2016, when Mfalme-Shu’la attended a free community training at the Knoxville Public Defender’s office to learn about a practice called “participatory defense.” At the time, she was in recovery from breast cancer, and her debilitating treatments had forced her to leave her job as a caretaker for people with mental disabilities. When she entered the room, the training was just beginning. Two women from Silicon Valley De-Bug, an organizing group based in San Jose, California, were there as trainers representing the National Participatory Defense Network, which at the time included roughly a dozen groups engaging in the practice. Silicon Valley De-Bug had been developing the concept of participatory defense for more than eight years, and the trainers were there to share their stories.

One trainer drew and wrote on a large flip chart set up on an easel, while the other told stories about how their group in San Jose had been engaged in community organizing around criminal cases, in a “hub” of families and neighbors working together to understand and support people in fighting their cases. The trainers described the practice of participatory defense, a term that was “naming an instinct and not an invention,” in which people collectively created agency in situations — criminal court cases — where they normally felt alone, even when they had well-meaning lawyers to guide them. The group might help dissect discovery documents, create a video or binder with sociobiographical information about the person accused of a crime, or any number of seemingly small interventions that they found had actual impact on the outcomes of cases. One of the trainers, Charisse Domingo, also said something else: that by changing outcomes in individual cases, over time, participatory defense hubs could fight mass incarceration itself. She argued that by building power among families and generating knowledge over time, they could actually push back against the system within which they were struggling.

Mfalme-Shu’la listened, inspired but also dubious. She wondered to herself, “What is this sorcery that you’re talking about?” She brought a notebook and wrote down the names of her brothers, as well as her friends with open cases, with question marks next to some of the names. “I was thinking back — my brothers, cousins, friends, all these cases, even in my case — wondering if we could have done this or that, or we can do this or do that.” (Two of her brothers were still in prison at the time, and one was on probation.) Mfalme-Shu’la did not know most of the other people sitting in the audience with her, but she later learned that a few of them noticed her because of how furiously she was taking notes. As the training ended, Charisse Domingo asked the room for a show of hands of people who might want to participate in something like this in Knoxville. Mfalme-Shu’la raised her hand, as did others. A pastor at Knoxville’s Tabernacle Missionary Baptist Church volunteered his church’s basement for a meeting. “Let’s do this now,” Mfalme-Shu’la suggested.

When I was a public defender in New York City, it was common for judges, clerks, and other courtroom players to refer to the individual assistant district attorneys (ADAs) as “the People,” as in, “Would the People like to request a lunch break?” or if an ADA was not visible in the courtroom, “Are the People in the bathroom?”

I referred to the prosecution as “the People” on the record on more than one occasion when I was a defense attorney, even as I resolutely condemned the language outside the courtroom — are the people accused of crimes not “the people” too? This was in part because I felt the need to maintain relationships with ADAs to negotiate for my clients, nearly all of whom were poor Black and Latinx Bronx residents. But that is only a partial excuse. The language of “the People” seeps into everyday courtroom practices, written motions, and case law — and can be heard at the beginning of all 22 (and counting) seasons of Law & Order, in which the voiceover intones that “the people” are represented by two “important groups”: police and district attorneys. The term comes to seem ordinary. And it comes to seem true: Most prosecutors are elected officials, and so they must represent the people. People accused of crimes are not part of “the People,” part of the public that matters. And when groups gather to support people accused of crimes or to resist incarceration, those groups are not part of a good or neutral public, but rather something else — something reactionary, something biased, something outside the workings of justice.

Collective interventions such as participatory or collective defense, as well as tactics like community bail funds and courtwatching, use the legal logic and language of the criminal system — the master’s tools — against that system. They do this through action, commandeering the tools of the system to support people caught inside it through otherwise routine procedural acts such as paying bail or participating in a sentencing hearing. When done collectively, by traditionally excluded groups and in opposition to the system’s dominant ideas, these communal acts raise foundational questions that call into doubt the legitimacy of the system itself. This makes these acts radical — literally, getting to the root of things: People who ordinarily are not in charge of legal interpretation work within the system to live out a new definition of “the people,” recasting the concepts of safety and justice so that those ideas can no longer support the status quo.

These collective tactics are most powerful, and most radical, when they are done as contestation — what in democratic theory is known as agonism. People engaging in agonistic acts take an adversarial stance toward practices and ideologies of institutions in power, but do so through engagement with those institutions. This means constantly contesting the ideas of the criminal system, but doing it using procedures and laws already in place. Groups that engage in this kind of collective contestation of the criminal system set up a new ideological struggle — the people v. the people — where the collective stakes of criminal punishment are on the table.

I stress the concept of agonism in democratic theory to underscore that these radical acts of justice are inherently democratic acts. To many, it is counterintuitive to say that the answer to the problem of mass incarceration is more democracy. After all, it is democracy that led us to lock up more people per capita than any other nation; again and again, people voted for politicians who ratcheted up the use of policing, prosecution, and imprisonment to solve social problems. Many who care deeply about reducing the scope of the criminal system believe our focus should be on shifting authority into the hands of social scientists or public policy “experts,” who can resist the tendency of the public to always turn to criminal punishment as a response to harm. One problem with this approach is that it is hard for these fixes to lead to large-scale change if the elite experts are still operating under the dominant concepts of justice and safety. When social movements engage in collective contestation within the criminal system, they expand sources of expertise to include experiences of incarceration, of family members’ incarceration, of enduring constant police surveillance, or of living in neighborhoods whose political power has been decimated by the criminal system. They embody a different understanding of what it means to say that the people are in the courtroom.

Within a week of the participatory defense training, Mfalme-Shu’la and nine other residents of Knoxville and its neighboring counties sat on folding chairs in the Tabernacle Missionary Baptist Church basement, resting their notepads on a white, T-shaped plastic table. Some came as members of local community organizations, including the NAACP chapter of the nearby city of Oak Ridge. And some, including Mfalme-Shu’la, came as unaffiliated community members. The group began by selecting a name: Community Defense of East Tennessee. Going around the room to discuss peoples’ visions for the group, they soon discovered that one attendee, Eddie, had an ongoing criminal case. (For people whose stories I learned secondhand through unpublished sources, I use pseudonymous first names only.) Eddie had been arrested while walking down the street in Oak Ridge County, on the sidewalk near a hotel. (The police officer later wrote down in the official report that he looked “suspicious,” Mfalme-Shu’la recalls.) The officers found no drugs or weapons on Eddie. Instead, his sole charge was “resisting arrest,” for the way the officer claimed Eddie responded when two officers threw him to the ground and placed him in handcuffs.

Hearing about Eddie’s open criminal case during their first meeting, the group recognized a phenomenon familiar to them — a police officer making an arrest without cause in response to perceived disrespect or criminality, sometimes known as “contempt of cop.” The group decided to set aside their planning and jump into practicing “participatory defense.” They followed the method the trainers had described: On a flip chart on an easel owned by the church, they wrote down what they knew and didn’t know about Eddie’s case. They wrote down the allegations that the police were making, one by one. They realized that Eddie was missing official reports about what the police claimed happened. And analyzing a map of the area, they wondered whether there was any surveillance footage from a hotel that sat less than a football field’s distance from where police threw Eddie to the ground.

Eddie, Mfalme-Shu’la, and another Community Defense member went together to a meeting with Eddie’s public defender in Anderson County — as they knew from experience, it can be hard to ask even well-meaning attorneys questions about the case or about their advocacy. They came with more than a dozen questions they planned to ask the attorney, including whether an investigator from the public defender’s office could try to find witnesses or surveillance footage from the nearby hotel of the arrest. When they walked into her office, however, the attorney’s first words to everyone but Eddie after “hello” were, “What are you all doing? You need to get out.”

Banished from the lawyer’s office, Mfalme-Shu’la waited for Eddie in the lobby. Yet, sitting there, Mfalme-Shu’la felt exhilarated. She knew that Eddie was prepared to hold his own with his lawyer. Mfalme-Shu’la had, in recent years, been going to local marches for Black Lives Matter in Knoxville. Those protests were energizing and made her think about structural racism in new ways. But despite the words of the participatory defense trainers, she was not jogged into realizing that she could play a part in changing results in the criminal system until she sat in the lobby of Eddie’s attorney’s office. She did not yet know that this intervention of Community Defense of East Tennessee would change the legal trajectory of Eddie’s case — it would be dismissed a year later thanks to video evidence from the nearby hotel that Eddie would alert his lawyer to at this meeting. Still, Mfalme-Shu’la already felt power shifting, even as she sat there, knowing that Eddie had the right questions to ask and the support of the hub in his ordeal. “We can make noise, but then what? This was the ‘then what.’ This was the action item. This is the way to give power back to people.”

Community Defense of East Tennessee continued to meet in the church basement one evening every week. For Mfalme-Shu’la and the other hub members, it was not always easy to create a sustained community of organizers; during their first year, there were a number of rifts among participants, including around how to center the perspectives of people of color and people accused of crimes, and how or whether to partner with public defenders. At one point, a member of the Oak Ridge chapter of the NAACP — a Black man who was also Eddie’s ride from Oak Ridge to the meetings in Knoxville — decided to leave the group after a particularly contentious meeting. Among other reasons, the man had expressed concern about the group’s embrace of the phrase “Black Lives Matter,” thinking it too radical. Responding to these difficulties, Community Defense of East Tennessee drafted seven principles of unity, with a specific focus on centering families and recognizing the dangers of white supremacy. One principle stated, for example, “We understand the criminal [in]justice system is fundamentally rooted in and operates through violent state oppression, especially white supremacy, classism, and misogyny.” And another: “As police and the growth of prisons in the country directly formed as an institution of slavery and racism, this group will unapologetically center Black and Brown liberation and power and this should be reflected in group leadership.”

With these collective principles, a steady group of regulars grew, and nearly seven years later, Community Defense of East Tennessee has rarely missed a Monday meeting. As the years progressed, the group slowly accumulated collective knowledge of the local criminal processes in Knoxville and its neighboring counties. People who joined the group with their own cases developed into long-term leaders. Hub members learned how to dissect police reports and how to put together “sociobio” packets — binders of sociobiographical information containing pictures and documents in a way that emphasizes the family, community, and general humanity of the criminalized person. They learned which local drug treatment programs could most easily accept new patients. They developed partnerships with the Knoxville public defender’s office, both in individual cases and in policy campaigns.

In 2021, the Community Defense of East Tennessee hub worked on more than 15 cases alongside the accused and their families. These included situations in which the hub helped members advocate, via sociobio packets and investigations, for better plea bargains than initially offered by the prosecutor or judge; at least two cases in which the hub supported community members on probation who were trying to avoid jail for violation of conditions; and ongoing protests and packing of courtrooms during the trial of hub member Reggie (a pseudonym), a U.S. Navy veteran found not guilty of aggravated assault of a police officer in a case where the officers brutalized him so severely that a tooth broke and his head required staples. A video shot on Mfalme-Shu’la’s cellphone after the verdict shows six hub members, in masks, surrounding Reggie in a hug of celebration. The hub also concentrated on larger demands that year, such as a social media push to demand that the district attorney’s office stop the practice of pushing for punitive plea bargains while the Covid-19 pandemic raged in the Knox County Jail. At the end of every case, the hub engaged in a tradition passed down from the participatory defense national network: On a whiteboard, they crossed off names as each case came to a conclusion, calculating the “time saved” — the difference between the initial sentence being threatened and the outcome of the case.

Mfalme-Shu’la remains the executive director of Community Defense of East Tennessee, as well as a trainer with the National Participatory Defense Network, which grew to dozens of hubs by 2022. Tennessee alone counts three active participatory defense hubs, including Free Hearts in Nashville and Concerned Citizens for Justice in Chattanooga. Mfalme-Shu’la is now the one who goes around the country giving trainings similar to those she received. Sometimes these trainings are virtual, sometimes in person — one Las Vegas training gathered three potential hubs from the region for a two-day session. Mfalme-Shu’la aims to elicit the same reaction that she had seven years ago: “[After] seeing my people being oppressed, this was a model that you could actually give someone power to face this system that has been destroying our families forever.”

When participatory defense hubs bring their collective power to a case, they often achieve what even experienced public defenders might consider the impossible. Mfalme-Shu’la tells a story of a Knoxville hub member, Daniel (a pseudonym), who was facing a sentencing hearing for which his attorney told him incarceration was the only possible outcome, in part because the assistant district attorney claimed that Daniel was a dangerous gang member. Members of the local Black Lives Matter chapter had created a petition of people demanding leniency, attesting that they knew Daniel as a harmless person in their neighborhood. And the Knoxville participatory defense hub put together a sociobio binder containing a mental health treatment plan that hub members had worked with Daniel to create. The binder also contained letters, from both close friends and relative strangers, members of the community who described Daniel as a familiar and welcome presence who would walk the local streets.

A video taken in the hallway outside the sentencing courtroom shows more than a dozen supporters from Community Defense of East Tennessee — a mix of races and ages —in a tight circle around Daniel, his mother, and his attorney, as Daniel’s mother implored the attorney to ask for mental health treatment rather than incarceration. The lawyer stood and listened politely. In the courtroom, the lawyer’s hesitation to use the binder to advocate for Daniel was clear. Mfalme-Shu’la remembers the flippancy with which the lawyer presented the binder to the judge: “Well, judge, they want me to give you this.”

Something then shifted: The judge flipped through the binder and then told the crowded courtroom that he would have to stop the hearing in order to consider all of the information before him. The case was adjourned. This moment generated a swell of excitement for hub members, a small but concrete win: “We stopped him from going to prison!” The exhilaration of collective power swelled even more when, at the next court date, the judge sentenced Daniel to the very treatment plan that hub members had helped put together. The impossible became possible because these hub members refused to take the ossified power relationships in the courtroom as fixed and instead used collective knowledge and advocacy to penetrate an exclusionary space.


Copyright © 2023 by Jocelyn Simonson. Excerpted from Radical Acts of Justice: How Ordinary People Are Dismantling Mass Incarceration, published by The New Press. Reprinted here with permission.

Jocelyn Simonson is a professor at Brooklyn Law School and the author of Radical Acts of Justice: How Ordinary People are Dismantling Mass Incarceration.

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