The customary case caption in criminal court, “The People v. Defendant,” pits the local community against one lone person in an act of collective condemnation.
Or, as the opening credits of Law and Order tell us, “The people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders.”
Procedures for policing, adjudication, and punishment often flow from this understanding of prosecutors and police officers as representatives of the public at large.
We construct the rules of interaction between accused individuals and the state based on a balance between, on the one hand, giving individual defendants adequate protections against state power and, on the other hand, smoothing the wheels of justice so that state actors can do their work of promoting safety and punishing transgressions on behalf of us all. The public is brought into conversation with “the People” by voting for prosecutors and serving on the occasional jury,
but rarely are members of the public at large—the people—envisioned as being on the side of defendants themselves.
And yet acts of popular intervention on the side of defendants happen every day: A community bail fund posts bail for a stranger;
activists surround a police car in which officers have detained a fourteen-year-old black boy whom the activists have never met;
a participatory defense team creates a biographical video about a defendant;
a group of courtwatchers sits in the audience section of a courtroom to demonstrate support for the accused.
These acts are sometimes isolated or spontaneous. But often, they are part of long-term efforts by marginalized groups, especially poor people of color, to participate in a criminal legal system that they feel does not represent them. Organizer and writer Mariame Kaba explains this 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.”
For Kaba and many other activists, the futility of trying to have their voices heard by those in charge of policing and prosecution has led them to turn toward interventions on behalf of defendants as a means of collective action.
In the context of the criminal courthouse, in particular, marginalized groups have pursued methods of popular participation outside of the formal mechanisms of voting and jury service, through tactics such as community bail funds, participatory defense, and courtwatching. Mainstream reactions to these forms of participation range from outrage and disgust to more subtle requests for dialogue and decorum.
But rarely are these bottom-up acts of participation recognized as a legitimate part of our work of seeing justice done; rarely do we acknowledge in any formal manner that the arrest and prosecution of an individual can run against the interests of local community members.
By relegating communal interventions on behalf of defendants to the status of problematic interference, rather than productive public participation, the ideology of criminal procedure facilitates the exclusion of marginalized communities from everyday criminal adjudication.
This Essay explores the disconnect between the leading conceptions of the proper place of public interventions in criminal procedure and the on-the-ground reality of groups who participate in everyday adjudication on behalf of defendants. The idea that “the Prosecution” is synonymous with “the People,” implicit in the case captions of California, Illinois, Michigan, and New York, serves as a jumping-off point for a larger examination of how we think about public participation in the criminal process. Despite this focus on the term “the People,” this Essay is not centrally concerned with the meaning of “the People” in the text of the Constitution—whether it is “the People” of the Second or Fourth Amendments
or the “We, the People” of the Preamble.
Instead, I examine the dominant ways in which we think about the uses and limits of public participation in criminal procedure, more broadly conceived: not only constitutional doctrine, but also statutory, administrative, and customary rules and practices that structure everyday criminal adjudication. When a judge orders a spectator to leave the courtroom or a clerk tells a community group that they cannot post bail, those official acts are as much a part of procedure as any formal rule.
What emerges from examining both constitutional doctrine and these on-the-ground realities of everyday procedure is a striking dichotomy between the idea of a collective “people,” and the lone defendant on the other side of the “v.”
This people/defendant dichotomy is problematic for a number of reasons. First, it assumes that the prosecution and the police adequately represent, or at least are capable of adequately representing, the interests of a local “community.” In reality, however, the unequal distribution of political power means that the decisions of “the People” are often not responsive to the interests of the poor populations of color most likely to come into contact with the criminal process as arrestees, defendants, or victims.
Moreover, seeking public input only on behalf of policing and prosecution ignores the multifaceted nature of any “community,”
excluding strong critiques of reigning practices and resulting in an echo chamber that reinforces existing notions of justice. I call this set of issues with the people/defendant dichotomy the representation problem.
The second problem with the people/defendant dichotomy is that it is imbued with a false sense that our procedures promote “neutrality” from the public during adjudication and other criminal procedures. To be “neutral” is to side with the prosecution, not the defendant. The ideal public (whether voters, juries, courtroom audiences, or the community at large) becomes a disinterested and decorous public, calm and orderly, without “bias” against the police or the prosecution. This false ideal of neutrality allows for the exclusion of members of the public attempting to participate in ways that align with defendants’ interests. For example, police officers arrest individuals filming officers in public for “interference” with police work;
judges forbid courtroom audience members from wearing shirts demonstrating support for defendants;
court clerks refuse to let community bail funds post bail for strangers;
and jury selection excludes individuals with criminal records or negative views of the police.
Under the guise of neutrality, popular efforts to intervene on behalf of defendants become interference with the rule of law rather than welcome participation. In the process, our estimations of public sentiment become distorted toward the prosecution. This focus on the creation of a neutral public that is not biased toward the defense also cements the status of arrestees and defendants as the “other,” as a group of outsiders different from the average member of the public, rather than of the public.
This, in turn, colors the interpretation and implementation of procedural rules. I think of this as the neutrality problem.
My argument is that under the umbrella of the people/defendant dichotomy, the representation problem and the neutrality problem together contribute to a concept of criminal procedure that moves us away from truly responsive local justice
and toward practices that are more punitive than the multifaceted interests of the public dictate. The people/defendant dichotomy constructs a limited and exclusionary view of which “public” matters in criminal adjudication. If we think of all members of the public as represented by “the People” and all those who might side with a defendant as “biased,” then we exclude from criminal adjudication those who would disagree with a prosecution or support a defendant, shutting out an entire subset of the public who might bring more contestatory views to the table. In doing so, procedural rules and practices do not simply mirror existing political inequalities—they create them.
This Essay is thus about ideology, about how the reigning assumptions structuring how we think about the criminal adjudicatory process legitimize inequitable practices and limit how we design procedures and approach reform.
I explore an alternative approach to thinking about popular participation in criminal procedure, and especially in the adjudication of criminal cases. With this approach, “the People” appear on both sides of the scale of justice in individual cases; no longer can the prosecution call itself “the People.” I look to the bottom-up practices of marginalized groups intervening on behalf of defendants to show the possibility of a different way of thinking about the place of the people in the criminal process, one in which members of the public are allowed to voice their support or opposition through procedural channels other than elections, juries, or community justice fora. If a central purpose of criminal procedure becomes to channel the will of the people into both sides of each individual criminal case—the prosecution and the defense—then popular efforts to intervene on behalf of criminal defendants take on legitimacy and importance. They become part of our system, worthy of examination in any comprehensive debate over how we design our procedures.
This Essay is part of a larger vision of the importance of leaving the sphere of criminal law open to communal resistance and to agonistic participation—forms of direct participation that engage with powerful state institutions in a respectful but adversarial manner.
Crucial to this vision is a view that local criminal adjudication is and should be a site of communal contestation and resistance.
This does not mean that all contestation is healthy or desirable. In the end, some popular interventions on behalf of defendants may skew the results of adjudication in ways that subvert our notions of fairness or the rule of law. But our starting point should be a presumption that popular interventions on behalf of defendants are legitimate, followed by an examination of whether they excessively undermine other competing values.
Part I begins by situating my argument within current debates over both the ideology of criminal procedure and the politics of criminal law. It then describes how bottom-up forms of communal contestation in everyday justice, including community bail funds, participatory defense, and courtwatching, present a vision of public intervention that does not fit neatly into existing narratives of popular participation. Part II lays out the contours of the dichotomy between “the People” and the defendant in our reigning ideology of criminal procedure. I argue that the people/defendant dichotomy carries with it two particular ideological problems: first, a limited focus on public participation through representatives, and second, an illusory conception of a public that is “neutral” and unbiased. Part III conceptualizes how the public might instead participate on both sides of individual conflicts in the criminal courtroom. Under this approach, a state might facilitate, rather than silence, direct, contestatory forms of participation in criminal adjudication most often found on the defendant side of the “v.” Finally, Part IV defends the conception of placing “the People” on both sides in individual criminal cases against the charge that it would unduly undermine the rule of law by connecting everyday contestation in criminal adjudication to the possibility of large-scale decarceration more broadly.
I. Ideology, Criminal Procedure, and Democracy
This Essay identifies, and then sets out an alternative to, a central ideological idea in criminal procedure: that the public’s input should fall only on the side of “the People,” or the prosecution. In this Part, I situate this argument within current debates over, on the one hand, the study of ideology in criminal procedure and, on the other, the place of popular participation in criminal adjudication. My goal is to bridge these two conversations, revealing the connection between how we think about criminal procedure and the inclusion of generally disempowered populations in our reigning conceptions of justice and fairness. A criminal legal system responsive to all facets of a local “community” should be one that facilitates collective forms of participation that challenge powerful institutional actors and dominant ideas of justice. Current forms of bottom-up communal contestation led by members of historically disempowered populations demonstrate how this might be possible and should inform our understandings of the interaction between the design of criminal procedures and the possibilities of public participation in everyday justice.
A. The Ideology of Criminal Procedure
In legal scholarship, there is a rich history of thinking broadly about the structure of rules, doctrines, and cultures that produce everyday criminal law and its processes—and often reproduce existing hierarchies and pathologies.
In the context of criminal procedure, Herbert Packer famously posed two competing “models” of criminal procedure in the 1960s: the “Due Process model” and the “Crime Control model.”
Packer argues that how we think of the purpose of criminal procedure—as a vehicle for due process or as a means of facilitating speedy prosecutions—in turn mediates the interpretation of constitutional and procedural rules. Packer’s models have spawned a wide range of critiques and adjustments, which further both positive and normative models of how we structure our criminal procedures.
A central insight of the literature on ideology and criminal procedure is that the principles we use to frame our procedures in turn shape the cultures of our precincts, courthouses, prisons, and other sites of interaction between criminal justice actors and the public. Although these principles are not always explicit, nor are they uniform, they constitute a set of ideas and assumptions that run beneath the operation of the criminal process and legitimize the status quo.
A full study of the ideology of criminal procedure requires moving beyond analyses of constitutional doctrine. As Packer puts it, studying criminal procedure demands attending to all of “the complexes of activity that operate to bring the substantive law of crime to bear (or to keep it from coming to bear) on persons who are suspected of having committed crimes.”
Indeed, although the term “criminal procedure” can at times be shorthand for “constitutional criminal procedure,” scholars and teachers are increasingly recognizing that we must study and teach well beyond the doctrine to capture the reality of criminal adjudication on the ground.
“Criminal procedure” is thus a combination of the rules and practices—constitutional, statutory, administrative, and customary—that structure contact with the criminal legal system for those suspected and accused of crimes. Widely held conceptions of these interactions in turn structure scholarship, doctrine, and the day-to-day practices of our courthouses and precincts.
The ideology of criminal procedure is especially important in the post-trial world of mass prosecutions and plea bargaining, in which “processes”—a stop-and-frisk, the provision of counsel, the decision to set bail—often determine as much as anything else the “substantive” outcome of a case or interaction.
Alexandra Natapoff recently theorized a model of criminal procedure that accounts for the differences between the substance-driven prosecutions of well-resourced defendants charged with serious crimes, often in federal court, and the experiences of less privileged defendants who are rushed through the criminal justice system without a thorough airing of the charges against them. Natapoff locates the experiences of poor people of color charged with low-level offenses as the bottom of a “penal pyramid”: a place where under-resourced defendants charged with low-level cases face “outcomes . . . driven by institutional practices and inegalitarian social relations.”
At the bottom of the penal pyramid, where the vast majority of criminal cases take place, formal rules and methods of public intervention escape from view in favor of top-down institutional practices that facilitate control and surveillance along lines of class, race, and gender.
In these situations, procedure is the control and the surveillance—the system doles out what Issa Kohler-Hausmann has termed “procedural hassle,” rather than conviction or formal punishment.
A full account of the ideology of criminal procedure in the post-trial world must therefore explore the relationship between the beliefs and judgments underlying procedural practices and the perpetuation of on-the-ground conditions of inequality.
B. The Public Participation Dilemma
How we think about criminal procedure is intimately connected to how we think about popular participation in criminal adjudication. Should members of the public be active participants in everyday criminal justice, or should the world of plea bargaining foreclose public intervention in favor of neutral processing by public representatives? Haunting this question is the widespread (though not universal) view that the current phenomena of “mass incarceration”
have been caused by a public bent toward “penal populism,” a hunger for criminalization and punishment beyond what is fair or rational.
This public, lacking a nuanced understanding of the causes of crime or the consequences of punishment, should perhaps not be trusted with control over efforts at decarceration or criminal-law reform at the individual level. At the same time, however, there is growing concern from scholars of criminal law and procedure that our post-trial world, in which juries are largely absent, too comfortably excludes the public from everyday adjudication, resulting in a system divorced from popular ideals of justice and fairness.
Under this view, we might do well to include the public more often in our adjudication of cases, whether by expanding the use of juries or creating new institutions of “community justice.” This public participation dilemma pervades contemporary scholarship.
The dominant contemporary conception of how to mediate public participation in contemporary criminal adjudication is to give the public input into systemic laws, policies, and priorities but keep individual cases against defendants free of public interference, except in the rare case of a jury trial. This is the backbone of a particular conception of the rule of law, in which procedural rules and criminal laws are defined by democratically elected legislatures, and judges and other courtroom actors then enforce those rules in a neutral and uniform way.
Even if legislation is influenced by penal populism, everyday criminal adjudication can at least abide by neutral, orderly processing, treating all defendants equally. In the world of plea bargaining, this means that the representation of the public by prosecutors becomes especially important—though jurors may sometimes serve as public representatives in individual cases,
juries are rare indeed.
Prosecutorial offices can improve their representation by setting up systems that combine democratic inputs and internal checks and balances.
However, once the prosecutor enters the courtroom, a neutral, untainted procedure determines a defendant’s fate. Under this view of procedure, criminal procedure becomes a way to ensure neutral and equal processing of a case after partisan inputs into systemic priorities. Conversely, any unpredictable or extrajudicial discretionary moves become interference with the orderly processing of cases.
Although this administrative ideal continues to hold sway, a growing number of scholars and policymakers recognize the decline in public input into everyday criminal adjudication as a problem, and even a democratic crisis, and look to democratic processes as a potential answer to the system’s ills.
Whether seen as a problem of legitimacy or representation, responses from scholars and state actors alike have featured calls to include the “community” in the bureaucracy of criminal justice in new and novel ways, including through community policing and community prosecution. These methods of seeking input range from stakeholder meetings,
to listening sessions,
to online notice-and-comment procedures.
The goal of much “community justice” becomes to make the representation better : to fix the politics of electing prosecutors or the internal checks and balances within the executive branch.
These “community justice” approaches prioritize consensus, with the goal of getting the entire “community” in agreement about prosecutorial or policing priorities at the systemic level.
Newer approaches to improving public participation also tend to focus on systemic inputs—on facilitating ongoing communication between institutional players and the local public. The notable exception is scholars who call for the creation of juries in which citizens make decisions at moments other than a verdict, including at a suppression hearing, bail hearing, plea, or sentencing.
But there is another way to approach public participation in the criminal system. In contrast to the community-justice focus on building consensus stands a different ideal of public participation: one that promotes agonism rather than consensus as the ideal mode of engagement by members of the public.
An agonistic stance toward public participation in criminal legal institutions would allow groups to participate in the processes of those institutions while still remaining opposed to the dominant priorities of the state actors in charge of them.
If we can open up our institutions to the flow of agonistic contestation, we might arrive at a more nuanced account of what is in the best interests of “the People.”
In order to do so productively, such paths of critique must include and even prioritize the voices of those marginalized populations who are most directly impacted by criminal procedural practices. For it is the people at the bottom of the “penal pyramid”—defendants, victims, and their families, friends, and neighbors who come from under-resourced neighborhoods
—who are least likely to have the political power necessary to voice critiques of the system.
It is therefore especially important to pay attention to existing agonistic forms of public participation in the very place where people excluded from the political process interact with institutional players every day: the criminal courthouse. As the next section demonstrates, while debates over the ideology of criminal procedure and the ideal nature of public participation in criminal adjudication take place, individuals at the bottom of the “penal pyramid” are taking public participation into their own hands by intervening collectively in individual criminal cases. In doing so, they demonstrate how agonistic contestation can play out in everyday justice.
C. Communal Participation from Below
Bottom-up agonistic participation in individual criminal cases plays out in criminal courthouses every day, in phenomena as varied as community bail funds, courtwatching, and participatory defense. The tactic of community bail funds exemplifies this dynamic. With a community bail fund, groups come together to post bail for strangers and assert a communal interest in a defendant’s freedom, in contrast to the assumed communal interest in pretrial detention.
Bail funds deliberately connect the fate of individual defendants with the fate of neighborhoods and communities, linking these relationships to larger visions of the (in)justice caused by seemingly neutral procedures. Bail funds express love and support for strangers—they are not 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.
Community bail funds now exist in at least twenty-one states throughout the United States.
Through the recurring, performative act of posting bail, these movement actors build power and shift dominant ideas about the legal meaning of “community” in everyday pretrial procedures, resulting in tangible political and legal change.
Community bail funds, however, are often met with resistance from court clerks and other courthouse and jailhouse actors
—especially when they bail out large numbers of people in a short period of time. In May 2017, for example, nearly two dozen local organizations coordinated together to bail out more than 100 women and caregivers for Mother’s Day.
In the words of Mary Hooks, codirector of Southerners on New Ground (SONG), who helped conceive, coordinate, and implement this mass action, this “Mama’s Bail Out Day” was a form of “abolition in the now” that brings both freedom to individuals and attention to “the slow deaths of our families and communities.”
Some local organizations involved in the effort, however, encountered resistance when they attempted to bail out more than one person for Mama’s Bail Out Day, finding that clerks, lawyers, wardens, and other corrections officials were “obstructionist to the farthest extent possible.”
This on-the-ground resistance from state actors demonstrates the ways in which the system bristles when social-movement interventions disrupt the status quo, even when they do so via formally established procedures such as the posting of bail.
Although state actors are accustomed to family members of defendants expressing support by posting bail, they resist the idea that a community group might support a defendant even though members of the group do not know him or her personally.
Community groups also use the procedural interventions known as “participatory defense” to intercede directly on behalf of defendants. With participatory defense, community groups join together with families, friends, neighbors, and allies of defendants to learn about the facts and procedures of individual cases, perform investigations, present biographical videos to prosecutors and judges, and pack courtrooms in support of defendants.
Participatory defense hubs operate in at least eighteen jurisdictions throughout the United States.
At every step, they aim to connect the stories of individual defendants to larger systemic injustices, exposing the everyday violence of policing, prosecution, and incarceration.
Although the goal of participatory defense at any one moment might be to help free an individual defendant, ultimately the aim of the practice is nothing less than an end to mass incarceration through “chang[ing] the landscape of power . . . in the criminal justice system.”
This means that a participatory defense group attending a “justice hub meeting” will applaud and congratulate a teenager recently released from custody, even though they have never met him before;
and a campaign to free an incarcerated black woman will work not only to humanize that particular woman but also “to challenge false and damaging binaries that we use to describe incarcerated people, like violent/non-violent and innocent/guilty.”
Although participatory defense campaigns may cooperate with public defenders or defense attorneys, lawyers are never the center of any one effort.
Instead, the wisdom and energy of marginalized groups who do not ordinarily have a say in the justice process are centered in collective efforts to support defendants, shift power, and create new visions of community.
But, like community bail funds, the tactics that make up participatory defense have met obstacles, both formal and cultural, at every step.
Collective forms of intervention in everyday adjudication also happen through observation inside the courtroom. Some community groups participate in efforts at courtwatching, not to support an individual defendant but rather to voice opposition to larger prosecutorial policies and practices, or to collect information so as to hold prosecutors accountable.
Courtwatching groups affiliated with larger social movements, for example, gather volunteers to document everyday proceedings in local courts—bond hearings, arraignments, pleas—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.
Courtwatchers not only hold courtroom actors accountable, they also shift the power dynamics within the courtroom, reminding institutional players of the larger public dimensions of individual cases.
Activists engaging with criminal adjudication through participatory defense, community bail funds, courtwatching, or any number of other collective interventions into everyday justice see themselves as trying to move the criminal legal system toward something that is more responsive to the local communities it claims to serve. The exploration of the ideology of criminal procedure in this Essay is indebted to the work of these contemporary movement activists to shift the discourse surrounding the interactions of power, structure, and community in criminal law and policy reform.
In the remainder of this Essay, I examine the facets of our ideology of criminal procedure that cause the system to resist these bottom-up interventions into everyday criminal adjudication. In the next Part, I attempt to set out what I see as the reigning ideology of procedure with respect to popular participation: that the general public belongs on the side of the police and the prosecution, and not on the side of defendants. This ideology facilitates the resistance of state actors to forms of agonistic participation with the greatest potential to shift the status quo in criminal adjudication.
II. The People/Defendant Dichotomy in Criminal Procedure
In our dominant contemporary conception of criminal procedure, the place of the public—“the People”—is on the side of the police and the prosecution, in an act of communal condemnation. From there, the familiar approach to crafting criminal procedure depends on the idea that police officers and prosecutors, or “the People,” should act and speak as representatives of the local community. This ideal of communal representation, in turn, dictates how we approach procedural innovations. If the ideal of representation is undermined—if the state is not adequately channeling popular will—then procedures can shift to seek out ways of gathering input to make police and prosecutors more responsive to the community. This is the heart of many contemporary criminal adjudication reforms that seek to craft new procedures in the name of “community justice.” At the same time, each defendant is in need of protection in the face of the communal suspicion that state actors personify. If the defendant does not have adequate protections against state power, the answer is to strengthen individual procedural protections through individual rights and resources. On each side, our channels of remedying injustices in the system strengthen the dichotomy between “the People” and the person whom the people suspect of wrongdoing. In this Part, I lay out the basic contours of this ideology and argue that it carries with it a distinct set of problems: one, an undue focus on prosecutors as representatives of the public will; and two, an illusory conception of a “neutral” public that is both disinterested and decorous. Taken together, the ideology of the people/defendant dichotomy serves to exclude marginalized populations from paths of participation in criminal procedure and legitimize overly punitive outcomes in individual cases.
A. The People v. the Defendant: Mapping the Dichotomy
Dominant conceptions of the criminal process largely presuppose a clean separation between the interests of the public and the interests of the defendant, which are assumed to be in direct opposition to each other. The people/defendant dichotomy is especially pronounced in the realm of adjudication, after a prosecutor decides to file charges, thereby designating a member of the public a “defendant.” This dichotomy plays out at multiple levels: in prosecutorial identity as representing “the People,” in the constitutional jurisprudence of individual procedural rights, and in the policies and cultures of local courthouses. And the dichotomy is echoed in much of the scholarship that examines ideology and criminal procedure: Herbert Packer, for example, assumed an adversarial system in which the defendant stands alone, with only defense counsel and formal rules and requirements to help her along the way.
As John Griffiths explained in his critique of Packer nearly fifty years ago, this assumption continually sets things up as a battle, a “stylized war” between “the Individual (particularly the accused individual) and the State.”
On one side of the battle is a lone defendant, and on the other are “the People.”
This theme recurs throughout the practices, rules, and jurisprudence structuring criminal procedure: The debate is over how to structure this battle between “the People,” represented by a prosecutor, and the defendant, rather than about whether the battle lines should be drawn in those ways at all.
When the public is situated as a force opposed to the defendant, prosecutors become the central representatives of the public in the courthouse. Prosecutors are “ministers of justice,”
representing the sovereign and its citizens, and must act in the interests of their client, the state.
This aspect of the prosecutorial identity—as a servant of the public—is but one of the multifaceted identities that prosecutors possess;
and the prosecutor’s duty to the public does not supplant her duty to the rule of law or even to an independent sense of justice.
But implicit in the prosecutorial identity as a public servant is the idea that they are the institutional actors who channel the will of the people into adjudication. This is how prosecutors are able to call themselves “the People” in many states. Although judges and even public defenders are sometimes elected,
it is the prosecutors who represent the people. Not only that, they represent the community, in the sense of a local public with common concerns; they speak for us all.
This leaves the other side—the defendant—as a solitary individual in need of the support of counsel and the protection of the Constitution.
I do not mean to minimize the importance of the criminal jury as an institution of public participation and representation. In the tiny subset of cases in which juries adjudicate guilt and innocence after a full-blown trial,
members of the public do indeed have important roles as citizens and judges.
This is the top of the “penal pyramid,” where cases are either adjudicated before juries or plea bargains genuinely happen in the shadow of potential jury decisions.
But this is not the reality for the vast majority of cases in criminal court, for which “[t]rials are nearly extinct and their shadows weak.”
Given this post-trial landscape, our contemporary ideology of criminal adjudication has internalized the reality that we have a “system of pleas, not a system of trials,”
such that prosecutors are able to assume their place as public representatives seeking justice on behalf of “the People.” Moreover, even when juries do deliberate and decide the fate of individual defendants, we select individual jurors amid an illusory ideal of neutrality that leans toward the exclusion of members of the public who might side with the interests of the defendant.
The dichotomy between “the People” and the defendant is echoed in constitutional jurisprudence as well. The emphasis on individual rights of defendants inside the courtroom is based, at its heart, on the classification of a lone defendant faced with communal suspicion. The reigning assumption is that protecting individual autonomy through constitutional rights and procedures can in turn protect fairness.
On the one hand, protection of an autonomous defendant is said to reinforce fairness and due process, and on the other hand, the public is assumed to be a force of condemnation pushing against this autonomous defendant. This leads to a constitutional jurisprudence that assumes that the weight of the public interest is on the side of the prosecution. For example, in the leading Supreme Court case on pretrial detention, United States v. Salerno, the Court explicitly describes a defendant’s interest in liberty and the community’s interest in safety as two sides of a scale of justice that a judge must weigh against each other.
This theme recurs throughout constitutional criminal procedure, from the Sixth Amendment right to counsel,
to the Fifth Amendment right to not be subject to double jeopardy,
to the Fourth Amendment protection against unreasonable seizure.
The assumption that the public’s interest and the defendant’s interest are in direct opposition to each other in turn affects a central calculus that courts must often make in constitutional criminal procedure: a balancing test between the prosecution’s interest in community safety (representing the interest of the public) and the defendant’s individual liberty interest (representing one lone defendant).
When the interests of the community are assumed to be on the side of the prosecution, the court’s calculation of costs and benefits fails to include the interests of the community that align with defendants. There is no recognition, for example, that members of a community might have an interest in the defendant’s liberty or share the defendant’s understanding of what a fair trial entails;
instead, the weight of the entire community is against the interests of the defendant. This skews the results of constitutional balancing tests in favor of the prosecution.
To be sure, constitutional jurisprudence recognizes that enforcing some rights can benefit both a defendant and other members of the public. For example, enforcing the exclusionary rule for violations of the Fourth or Fifth Amendments in individual cases can deter police misconduct in other instances,
and prohibiting the exclusion of jurors because of race or gender benefits potential jurors in addition to defendants.
The idea that one defendant may act as a kind of “private attorney general” in a suppression hearing squarely recognizes that the public and the defendant have shared interests in constitutional police conduct.
The Fourth Amendment, in particular, explicitly protects “the people” rather than a single “person” or “accused” as in the Fifth and Sixth Amendments.
The Supreme Court has stressed the significance of this distinction, which implies a common interest between all “the people,” including defendants, in protection from unnecessary state interference.
But while this strand of Fourth Amendment jurisprudence does indeed imply that defendants are part of a broader “people,” a “national community,”
the context of adjudicatory procedure does not support the inverse idea, that the “people” support the defendant. In the courtroom context—a suppression hearing for a Fourth or Fifth Amendment violation—the idea is that a defendant may help the larger public of people similarly situated, not that the national community stands on the side of the defendant.
Or, as Bill Stuntz describes it, the exclusionary remedy exists as “protection extended to the guilty primarily as a means of protecting the innocent.”
The public’s interest is not in the freedom of the defendant but in the constitutional treatment of other “law-abiding” members of the public.
Indeed, the doctrines structuring interactions between the police and the public themselves construct a separation between “good” and “bad” members of the public.
The people/defendant dichotomy remains.
Even the constitutional doctrines that would seem to provide a place for public input beyond the prosecution—the jury-trial right and the right to a public trial—tend to reinforce the sense that the appropriate community input in adjudication is that which stands with the prosecution, or at least is not “biased” against the prosecution. Although the Sixth Amendment guarantees that a jury be drawn from a fair cross-section of the local community, in practice the demand for neutral and disinterested jurors weeds out many jurors who might tend to side with defendants. For example, we comfortably exclude from juries not only potential jurors with criminal convictions
but also those who have a history of being arrested or charged with crimes,
or whose family members have experience with the criminal legal system.
And although jury nullification is a powerful tool that juries can use to check prosecutorial power, it is a hidden power, and jurors who admit they might nullify are excluded from serving.
Jury nullification, of course, may directly controvert some conceptions of the rule of law.
So, too, might the elimination of another doctrine that epitomizes the idea of a jury primed to side with the prosecution: the requirement that jurors in death penalty cases be “death-qualified.”
But these doctrines defining the composition of “unbiased” juries exemplify a conception of criminal procedure that defines “bias” as the tendency to side with defendants.
The separation between the people and the defendant is also at work in efforts to seek popular input into the criminal process in new ways outside of the courthouse, especially through methods of “community justice.” Community prosecution and community policing may be promising ways to expand the number of voices who have input into policing and prosecution priorities.
But even when these processes expand to better capture communal sentiment in local criminal law, they continue to do so by assuming that the community (including victims) is on the side of policing or prosecution. They rarely encourage or incorporate critique, and may instead have the tendency to mute any voices that seek to challenge the status quo.
They rarely ask how to facilitate communal support of those subject to surveillance, arrest, prosecution, and punishment.
And they rarely look to the ways in which marginalized populations are already intervening at moments that are technically “procedural” but when added up constitute the heart of the criminal adjudication experience.
A conception of criminal procedure that places the public in direct opposition to defendants and arrestees is problematic for a number of reasons. To begin with, it is descriptively inaccurate. Pairing “the People” with the people discounts the array of ways in which marginalized groups living in the shadow of the carceral state intervene in the criminal process on behalf of defendants and those targeted by the police.
Police and courts often meet these bottom-up participatory tactics with resistance, arguing that they undermine the rule of law and disrupt the decorum of everyday justice. For example, police arrest organized copwatchers for filming, administrators close courtrooms to spectators, and judges order the closure of community bail funds.
This state resistance to participation on behalf of defendants is made possible by the people/defendant dichotomy, which limits the ways in which we balance and reform our current procedures. Below I flesh out two particular facets of the people/defendant dichotomy that serve to legitimize the exclusion of marginalized populations from everyday adjudication: the representation problem and the neutrality problem.
B. The Representation Problem
The idea that the public stands on the side of everyday prosecutions allows the criminal process to channel public participation in everyday adjudication through the public’s representatives, most prominently line prosecutors. The problem with the ideology of representation is not the concept that prosecutors represent the interests of some public—surely they do. Rather, the problematic assumption underlying the representation ideal is that prosecutors represent the interests of the entire community. Describing prosecutors and police as representatives of “the People” as one entity assumes that our current methods of seeking public input into criminal justice are capable of accurately channeling public sentiment. This assumption is not only false, it is harmful; it allows the process to exclude those who would try to participate in other ways. The result of the ideology of representation, then, is that marginalized groups are doubly excluded: They are excluded from the participation that does happen, and their own bottom-up participation is discounted as illegitimate.
Prosecutors have deeply entrenched identities as conduits for the public will for justice—as representatives of the public. This prosecutorial identity as a representative of the local public is exemplified by a prosecutor calling herself “the People” in court, but it is not dependent on this label. Nor is it solely about being elected by the populace. As Attorney General Jeff Sessions, himself an appointed rather than elected prosecutor, told a room of state and local prosecutors: “As a prosecutor, you have the honor of representing your community in court. I will never forget the feeling of going before a judge and saying, ‘the United States is ready.’ I will never get over that feeling . . . . I’m sure you feel the same way.”
With respect to prosecutions, the idea of representation can mean either that prosecutors are making decisions that reflect the priorities of the public (they are “descriptive” representatives), or that prosecutors have been fairly selected and given authority to make the decisions that they feel are just (they are “acting for” the public based on their own ideas of justice).
Either way, the ideal of representation serves to cement the idea of the prosecutor as a conduit for the public interest. This concept of public prosecutors as representatives channeling public sentiment arose in the eighteenth and nineteenth centuries, as public prosecutors gradually supplanted private parties as initiators of criminal prosecutions in the United States,
with the role of defending the “peace and dignity of the state” by publicly prosecuting wrongdoers.
The resulting concept of public prosecution was that “society as a whole [is] the ultimate victim” of crime, and the role of prosecutors is to represent society in condemning that crime; in this sense, prosecutors are the people.
The ideal of prosecutorial representation has a baseline faulty assumption: that popular input happens, and happens well. The dichotomy between the people and the defendant assumes that because prosecutors and police chiefs are often elected, they are able to transform public sentiment into legal action. However, while prosecutorial and policing decisions surely reflect some popular sentiment, and possibly even the majority view of justice,
studies have continually shown that they usually do not reflect the input of the most marginalized voices, who either are ineligible to vote or come from neighborhoods whose political power has been undermined by mass incarceration.
This is in large part a consequence of the broad reach of the criminal legal system itself, which not only disenfranchises large numbers of people with criminal records or in state custody but also drains political power from entire neighborhoods
and teaches those who have contact with the criminal justice system that they are not deserving of full participation.
Even if it were possible to perfect representation, to assume that the people speak through “the People” (or through any representatives) discounts more adversarial forms of participation that would challenge everyday institutional practices. In other words, the focus on perfecting public input into prosecution priorities ex ante facilitates the suppression of input on behalf of defendants in individual cases. Because we assume that the public should participate in criminal procedure through their representatives, the system can feel free to treat interventions on the side of the defendant as interference rather than participation. When we interpret the will of the people, we do not take into account the input of those who intervene on behalf of defendants: They are simply members of the defendant’s support team, rather than members of the larger public whose views should dictate policing and prosecution priorities. As the next section describes, running alongside this ideal of representation is a second ideal, of a “neutral” public, which brings with it a related set of limitations with respect to public participation in criminal justice.
C. The Neutrality Problem
The second problem with the ideology of the people/defendant dichotomy is that it creates a misleading and exclusionary ideal of a “neutral” public that participates in the criminal justice process.
The ideal of a neutral public—a public that is both disinterested and decorous—is problematic because in practice it defines a neutral public as a subset of the public that buys into the legitimacy of the current system and the general priorities of current policing and prosecutorial practices.
Those assumed to be opposed to the dominant approach of the system are weeded out as biased, leaving us with a public predisposed to uphold the status quo. And those who take on more adversarial forms of participation are seen as disruptive, silencing counterviewpoints that might otherwise add balance to our conceptions of justice.
The concept of a “neutral” public in criminal procedure begins by excluding from its definition of the public those with criminal records or prior contact with the criminal justice system, labeling them inherently “biased.” The formal exclusion of individuals with criminal records from participating in criminal justice as voters, jurors, and bail bond agents is based, in part, on a belief that people with criminal records are too biased to be neutral. One of the explicit justifications for disenfranchising individuals with felony criminal records, for example, is that people with criminal records will be biased against sensible crime policies.
Roger Clegg puts it this way: “If these laws did not exist there would be a real danger of creating an anti-law enforcement voting bloc in municipal elections, which is hardly in the interests of a neighborhood’s law-abiding citizens.”
In congressional testimony, Senator Mitch McConnell similarly worries that giving individuals with criminal records the ability to vote would create a “voting bloc” that would make it hard to be tough on crime.
The idea that individuals with criminal records might side with people accused of crimes, and that this is a bad thing, also pervades the practices of everyday adjudication such as jury selection,
and the regulation of the courtroom audience.
This idea, that people with criminal records or police contact are too biased to be included in public-facing procedures, furthers not only the isolation of individual defendants from public support but also the alienation of entire neighborhoods from the political processes that do happen.
The result is the legitimation of exclusionary rules and practices that maintain the antidemocratic nature of everyday criminal procedure.
The discourse surrounding the bias of individuals with criminal records is particularly strong in the realm of jury selection, where courts throughout the United States comfortably exclude individuals with criminal records from juries, either under blanket policies or via individual voir dire. When defendants have challenged the blanket exclusions of individuals with criminal records from jury service, courts justify the practice with the idea of neutrality, based on “promot[ing] the legitimate state goal of assuring impartiality of the verdict.”
Judicial decisions discuss the “presumptively ‘shared attitudes’” of people with felony convictions
and the “bias in favor of the defendant on trial, who is seen as a fellow underdog caught in [the system’s] toils.”
Whether or not it is correct to say that people with criminal records are more likely to acquit a defendant,
the underlying idea is clear: Empathy toward defendants as a general group of people accused by the state has no place in the courtroom. This state interest in “impartiality” has been enough to uphold constitutional challenges to the practice of excluding individuals with felony records from juries.
Similarly, courts have created a safe haven for prosecutors to strike from juries individuals who hold negative views of police officers, even if prospective jurors say that they could be impartial in assessing the evidence in the case.
Rarely, if ever, do courts engage in the reverse analysis, asking whether people without criminal records might have a different kind of bias, of not understanding what it is like to go through the process of arrest or accusation.
Indeed, Batson jurisprudence is generally resistant to allowing defense attorneys to exclude white jurors because they may hold positive views of law enforcement.
The assumption is that to be generally in favor of policing and prosecutorial policies is to be neutral.
The institutional practices of state courthouses also tend to push back against members of the general public who attempt to participate in everyday justice on the side of defendants, labelling them as biased meddlers rather than healthy participants in everyday justice. Although the First and Sixth Amendments together guarantee the right to a public criminal adjudication, in practice local audiences are often excluded from courtrooms, whether because courts create policies that explicitly forbid public attendance at nontrial proceedings, because courtrooms are too crowded, or because—in the case of courtwatching groups or other activists intervening on behalf of defendants—the presence of supporters of defendants undermines the “neutrality” of the proceedings.
Some court officers tell members of the public who are there to support a defendant but are not family members that they cannot enter courtrooms.
And it is not uncommon for courthouses to allow victims’ rights advocates to sit together and wear visible T-shirts or other indications of prosecutorial support but to exclude groups who wish to sit in courtrooms visibly supporting defendants.
The net result of these doctrines and practices is a watered-down vision of lay participation in public adjudication in which to be “pro-defense,” “anti-police,” or “anti-prosecution” is a state of mind in conflict with the rule of law or the process of a democratic criminal justice system.
Overall, then, the pervading sense that audiences and juries must not be pro-defense or biased against the prosecution helps explain how state actors meet direct communal participation on behalf of defendants with either resistance or silence. When court clerks tell community groups that they cannot post bail for strangers, for example, those clerks simply cannot conceive of “neutral” reasons for a group to bail out a stranger. The bail fund becomes a force infusing bias into a neutral system, rather than a community group articulating a broader vision of justice that involves supporting defendants whom they do not know personally.
In this way, the concept of a “neutral” public of which defendants are not a part makes it that much easier to automatically cast those accused or investigated as “other.” When we cannot imagine ourselves on the side of the defendant, then we construct rules and analyze doctrine in distinctly different ways than we might otherwise.
The dominant ideology of criminal procedure simply cannot account for communal participation on behalf of defendants as anything other than “biased,” stifling the ability of these bottom-up visions to make their way into our everyday understandings of criminal procedure.
III. Putting the People on Both Sides: An Alternative Vision
In this Part, I put forth an alternative vision of criminal procedure that conceives of public participation as a valuable input on both sides of every criminal case. This vision centers on the notion that the public, or the “community,” does not always stand in opposition to a defendant who asserts an individual right or invokes a procedural rule. Instead, there is a facet of the local public that is on the side of many defendants—and potential defendants—as part of their own visions of justice and community.
The people are not just on the side of the prosecution, and so we should recognize the benefit of facilitating resistance to individual prosecutions by encouraging participation at multiple moments in the criminal process. I begin with two theoretical ideas: first, that democratic criminal processes benefit from facilitating communal, agonistic contestation; and second, that such democratic contestation requires moving beyond the idea of prosecutors as representatives of the entire “People” in the courtroom. I then flesh out what putting “the People” on both sides of a criminal case can look like on the ground.
A. Communal Contestation Through Criminal Procedure
Criminal adjudication involves the prosecution of individual defendants for alleged law-breaking; but it need not follow that individual defendants stand alone in the courtroom. If criminal justice is a public enterprise, then we might open up both sides of a criminal case to public participation and to contestation over the meanings of justice and fairness. Collective interventions on behalf of individual defendants allow members of the public to connect the fates of those defendants to the well-being of entire neighborhoods and communities.
Groups of laypeople are able to demonstrate through action their disapproval of individual prosecutions while simultaneously contesting existing priorities in local criminal law more broadly. When laypeople join collectively to contest meanings of justice, they bring into the criminal courthouse what Lani Guinier and Gerald Torres call “demosprudence”—the engagement of social movements with legal meaning.
The criminal courthouse can become a site of democratic contestation in which ordinary people’s visions of justice are placed on equal ground with those of elected prosecutors or judges. This communal resistance to prosecution can enrich the public arena of justice, expanding the possible legal meanings that we can attribute to any individual case or issue.
The conceptual shift I propose is intimately tied to the larger normative belief that direct forms of contestation are crucial for democratic justice. Although this Essay does not aim to present a complete theory of democracy by any means, there are at least four important aspects to how I conceptualize democracy and political change that bear on this Essay’s vision of criminal procedure. First, I share with a republican criminal justice ideal the view that giving officials too much power is dangerous; in the context of criminal justice we should prioritize popular interventions, including from social movements, that counter dominion.
Second, moving beyond a neorepublican ideal,
my vision centers on the importance of agonistic interventions in which people who participate can remain opposed to the actors who ordinarily dominate the process. With agonism, lay participation in the criminal legal system can take an adversarial stance toward practices and ideologies of institutions in power through engagement with those institutions, by acknowledging intractable differences but respecting the adversary who disagrees.
Embedded in this second idea is a third: a pluralist conception of the demos in which there is no one “public,” “people,” or “community” to whom state actors are beholden, but rather multiple publics with contrasting ideas about justice that cannot be easily reconciled.
This is therefore not a populist vision of criminal adjudication, in the sense that I oppose the view that there is only one legitimate conception of who “the People” are.
The fourth important strand of this view of democratic criminal justice is that popular participation need not be mediated through representatives, but can and should also spring up through direct forms of participation and contestation.
Under these conceptions of democracy and political change, the answer to any disconnect between criminal processes and popular will is not to move away from or supplement the adversarial process but rather to bring into our debates over criminal procedure the merits of facilitating direct popular intervention on both sides of the “v.” Indeed, this way of thinking about criminal procedure, in which the public has a part to play on both sides of any case, highlights a potential benefit of our adversarial system of criminal adjudication: that it can facilitate important forms of contestatory participation in everyday justice that would otherwise be muted in consensus-based methods of gathering popular input into criminal justice.
Moreover, these forms of contestatory participation are more likely to come from marginalized populations with the least amount of power in the current system—the poor people of color who are most likely to be arrested and prosecuted, as well as to be victims of crime. Power can move through procedure: When a group posts bail for a stranger, sits together in a courtroom to support a defendant, or makes a biographical video for a sentencing hearing, the members of that group shift power and agency dynamics inside the courthouse, destabilizing deeply entrenched legal and constitutional meanings. Dismantling the people/defendant dichotomy thus carries with it the potential to push back against the antidemocratic nature of current power relationships in criminal law and procedure.
B. Moving Beyond Representation
This vision of criminal procedure requires moving beyond representation, particularly inside the courthouse. This does not require that we abandon the use of prosecutors as representatives on the side of prosecution or of jurors as occasional representatives during deliberations after a trial. But to rely only on these representatives results in an illusory sense of representation of the polity as a whole: in the case of prosecutors, because they cannot fully represent any one public; and in the case of juries, because they are so rarely sworn in.
Our dependence on public representatives inside the courthouse is not inevitable—the Constitution does not require that we engage in criminal justice through representatives. Indeed, a structural reading of the Bill of Rights underscores the importance of the public as a constant presence, as jurors and as audiences, in the adjudication of criminal cases.
And, historically, the concept of the “jury of the whole” implicated the interest of the entire public in participating in individual cases on all sides.
As Judith Resnik and Dennis Curtis have identified, one of the central purposes of keeping courtrooms open to the public today is that audience members can “deny[ ] the government and disputants unchecked authority to determine the social meanings of conflicts and their resolutions.”
When we shift our understanding of public participation so that it runs through representatives such as prosecutors, however, we mute other forms of direct engagement in everyday justice.
Moving beyond representation begins with a recognition that prosecutors do not fully represent “the People,” and therefore we should not label them that way. States such as California, Illinois, Michigan, and New York should abandon that label on case captions and when referring to individual prosecutors. Instead, it is more honest to designate prosecutors as “the State,” “the Commonwealth,” or “the Government”: They are state actors, wielding their state power to prosecute individual defendants. This distinction matters. The words that we use to describe prosecutors make their way from courtroom dockets and Westlaw into courthouse conversations and popular culture. When I was a public defender in New York City, it was common for judges, clerks, and other courtroom players to refer to individual Assistant District Attorneys as “the People,” as in, “Do the People have an offer?”; “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?” Calling an individual prosecutor “the People” sends a powerful message to courtrooms full of defendants waiting for their cases to be called: a message that those defendants are not part of “the People,” are not part of the public that matters. And to the public at large, it sends the message that the good public, the “neutral” public, cannot be on the side of the defendant.
This is not mere rhetoric; there is an important conceptual distinction between claiming that a prosecutor acts on behalf of the state and claiming that a prosecutor acts on behalf of her community and is of the community. As Michelle Madden Dempsey has argued, “[W]hilst prosecutors necessarily represent their state, they may very well fail to represent their community.”
Dempsey follows R.A. Duff in arguing that for the prosecution to represent the community, the prosecution must meet conditions of political legitimacy by treating alleged wrongdoers with respect, as members of that very community.
Dempsey concludes that this ideal, of an inclusive community of which defendants are a part, is rarely if ever achieved in the United States.
As a result, “[g]iven the radical disparity between the actual and the ideal in prosecutorial practices and criminal justice systems more generally . . . it is unlikely that any prosecutor acts on behalf of (represents) every member of her political community.”
Prosecutors may therefore be legitimate agents of the state—they may be elected, a majority of the local citizenry may even have chosen them—but it does not follow that they have permission to speak as an agent of the community. Indeed, to speak of prosecutors as constitutive of communal sentiment runs counter to the very concept of adversarial prosecution by a public prosecutor. Paul Butler puts it this way: “In an adversarial system, the prosecutor who is too sympathetic toward the defendant’s plight or too suspicious of the police is not doing her job.”
An honest accounting of how our criminal justice system operates must acknowledge that prosecutors engage not just in imperfect public representation but also in troublesome forms of power-wielding against relatively powerless people. In republican terms, prosecutors are sources of state domination as much as of popular representation.
To keep this domination in check, we must first acknowledge it. From there, we can then facilitate and even encourage forms of communal contestation that counter it.
This contestation should not be mediated through representatives, either public defenders or a new form of communal representative in the courtroom. Public defenders are not in a position to provide an adequate counterweight to prosecutors as community representatives. Public defender offices are sometimes seen as representing communal interests, either because they check the power of the prosecutors on behalf of defendants in the aggregate,
or because they adopt institutional postures of being “community-based” or of advocating for larger political change that benefits their clients.
However, the beneficial roles of institutional public defenders are different from, and can even conflict with, the power of communal intervention on behalf of individual defendants.
Although we might imagine a new kind of community representative who could represent public interests in the courtroom,
this second problem would still remain: Such ombudsmen or public advocates would not facilitate the shifts in power that characterize direct forms of communal participation.
Instead of searching for perfect representatives of public will, then, our system of criminal procedure must also facilitate direct, contestatory forms of participation in criminal justice most often (but not exclusively) found on the defendant side of the “v.” To be sure, precinct and courtroom actors should be democratically accountable.
In recent years, some local prosecutorial elections have been genuinely contested, and a number of “progressive” prosecutors have won elections with promises of reform, racial justice, and decarceration.
These are promising developments for anyone interested in decarceration. And yet, we should be careful not to let the high-profile wins of progressive prosecutors further re-entrench the notion that the public belongs only on the prosecution side of the “v.”; even when a progressive prosecutor wins, she does not represent the full community. As long as there are prosecutions against individual defendants, there will be members of the public who support defendants, and there will be interests of the public that coincide with the interests of defendants. The people will be on both sides.
C. When the People Are on Both Sides
What does this new vision of criminal procedure look like on the ground? There are examples all around us. Many existing forms of communal contestation demonstrate how agonistic participation can be a powerful and productive force in local criminal justice, underscoring the place of “the People” on the side of the defendant. The tactics that make up participatory defense, for example, are powerful because they not only help mitigate an individual defendant’s sentence, they also connect the fate of that person to the public at large. A participatory defense team might produce a biographical video to be shown in court that tells an individual defendant’s personal story within the context of his neighborhood and local community.
Doing so demonstrates to the court that, in the words of one participant, “there never is a sentence just for the ‘defendant’, but rather . . . all the time of incarceration is shared time.”
Similarly, when a community bail fund posts bail for a stranger, or for multiple strangers in a mass bailout, they declare through their actions that they have a “shared destiny” with the people for whom they post bail.
And these actions, in the aggregate, build power within marginalized communities and push against established ideas of risk, public safety, and justice.
We can imagine an approach to criminal procedure that treats tactics of communal contestation, such as participatory defense or mass bailouts, as procedures worthy of consideration on an equal playing field with other mechanisms of generating public input. My argument is not that any of these interventions are always normatively good or procedurally just. Indeed, as I discuss below, there may be aspects of participatory defense or other movement tactics that make one pause to the extent that they bump up against an ideal of the rule of law. But to think about the popular thrust behind these interventions as being about communal or democratic input, rather than simply the enforcement of individual rights on behalf of one person, helps to situate their contribution and to analyze their relative worth. We 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 and pushing for responsive justice in a system that continues to ignore the input of marginalized populations.
Imagining criminal procedure as a process of regulating popular intervention on both sides of the “v.” opens up procedure to new ways of thinking and acting. We can take account of the voices we include and exclude in proceedings and realize these are not inevitable choices. We can pay careful attention to the ways in which our current procedures facilitate or impede bottom-up resistance to local police actions and prosecutions from those who otherwise do not have a voice in the process. We can move beyond perfecting the community input into prosecution and the police in recognition that prosecutors and police departments can never truly represent a “community.” We can move toward a jurisprudence of constitutional criminal procedure that acknowledges communal harms and communal interests beyond the traditional idea of “public safety.” And we can hesitate before discounting messy forms of grassroots contestation in favor of the calm decorum of juries, elections, or community policing.
In the sphere of policy, for example, state actors might overcome their aversion to agonistic participation by enacting policies that allow for disruptive but nonviolent forms of protest and intervention. States might change their regulations for posting bail to allow community groups to post bail for multiple people, for any defendant, and in any amount, without taking a percentage of the money before returning bail at the end of the case.
Courtroom rules might shift to allow audiences to visibly support defendants.
States might change both the law and practice of excluding from juries individuals with criminal records or a history of contact with the police.
State and local legislatures, courtroom rule-makers, police departments, and local prosecutors all have a role to play in reexamining these official policies. This does not mean that state actors should take control of these bottom-up interventions, for example through the creation of state-sponsored bail funds.
Rather, state actors should take the bold step of ceding power, of deliberately facilitating power shifts down to the marginalized populations who traditionally have the least input into everyday justice.
Although for the most part this Essay has focused on courthouse dynamics of contestation, these arguments hold with equal force in other domains of criminal justice, including interactions with police officers on the streets and roads, collective efforts to shift the policies of individual prosecutors, and collective resistance by people in custody in jails and prisons. In order to promote collective dissent against policing priorities, localities might enact policies that respect the right of the people to assemble, protest, record, and verbally dissent when observing police interacting with people in public.
And administrators of prisons and jails might allow incarcerated people to engage in hunger strikes and labor strikes, and to publicize their efforts beyond prison walls.
A vision of criminal procedure that sees the “public interest” on both sides of each criminal case should inform constitutional procedural doctrines as well. This applies most directly to the doctrines structuring public participation in the courtroom: Courts might interpret the First and Sixth Amendments to give community members the right to dissent and intervene in individual cases,
and recognize the asymmetry of Sixth Amendment rulings that sanction the exclusion of individuals with criminal records as “biased” but find no bias in those with pro-police or pro-prosecutorial attitudes.
Beyond these doctrines structuring public participation, constitutional jurisprudence along a range of individual rights would shift profoundly if it were to recognize the popular interest on the side of defendants via the communal harms of arrests, prosecutions, incarceration, and punishment.
Recognizing communal harms of arrests and prosecutions would shift key constitutional calculations, such as with respect to substantive due process,
the Eighth Amendment right against excessive bail,
and the Fourth Amendment right against unreasonable searches and seizures.
These are just examples. But they demonstrate that overcoming the people/defendant dichotomy can have real on-the-ground consequences for how we design and enforce our procedures and how we interpret our constitutional rules. Envisioning the public intervening on both sides of individual criminal cases requires resetting our assumptions about who counts as democratic subjects in the administration of criminal law and how democratic participation happens in individual cases. By expanding our notions of participation, we might be able to move closer to a criminal legal system that is more inclusive and responsive to the public it claims to serve.
IV. Resistance, the Rule of the Law, and Decarceration
In this concluding Part, I flesh out some implications of putting the people on both sides of individual criminal cases for the moment that the United States finds itself in today: facing a carceral state that has ballooned out of control.
Despite widespread, though not universal, acknowledgement of the urgent need for large-scale criminal law reform,
mainstream reforms have yet to truly change the fundamental aspects of a system that arrests, prosecutes, and imprisons vast swaths of its population,
with striking inequalities along lines of race, class, and gender.
The most marginalized populations in the country are stuck in a cycle of imprisonment and supervision; they are “Caught,”
and suffocated in a “Chokehold”
—to name the titles of three recent scholarly books analyzing the problem. Marie Gottschalk (author of Caught) argues that the only way to achieve large-scale decarceration is to allow ourselves to be open to “convulsive politics from below”
—to collective resistance that can open up political room for transformation.
A number of other scholars, including Amna Akbar, Paul Butler, Allegra McLeod, Janet Moore, Dorothy Roberts, and Jonathan Simon, echo this idea: that our current moment demands extraordinary kinds of interventions into our modes of criminal justice, and that, today, the most inspiring visions for how to do this are found in on-the-ground movements for social and racial justice.
But does “convulsive politics from below” really belong inside the criminal courthouse? This Essay’s vision of criminal procedure would bring bottom-up contestation over criminal law and policy directly into courtrooms, and directly into individual cases, presenting a challenge to conventional understandings of the rule of law and procedural uniformity. In this Part, I confront this tension, defending a conception of criminal procedure in which “the People” are on both sides against the charge that doing so presents an insurmountable problem for the rule of law. I argue that in our present historical moment the risk of partially undermining the dominant idea of the rule of law is, overall, worth the upside of facilitating popular engagement by marginalized populations into a criminal legal system characterized by mass incarceration and supervision of those very populations. This is because popular interventions on behalf of defendants, and in opposition to a state claiming to represent “the People,” provide a method of opening up a closed and alienating criminal justice system to a set of beliefs in the need for decarceration and even abolition held by subsets of the public that have for too long been excluded from public discourse.
A. Communal Resistance and the Rule of Law
There is not a neat relationship between opening up criminal adjudication to direct participation on the side of defendants and protecting rule of law values. Many forms of direct participation in everyday adjudication operate squarely within established legal rules, for example when community bail funds post bail for strangers while following state and courthouse rules regarding the posting of bail, or courtwatching groups exercise their First Amendment right to observe courtroom proceedings.
And yet, structuring local courtrooms to facilitate popular interventions on behalf of defendants may present dangers to the rule of law by facilitating unequal, irregular, or even oppressive forms of resistance to the ordinary criminal process. Here we might imagine, for instance, a version of white supremacist jurors nullifying extralegal lynchings of African Americans in the South:
A contemporary group intervening in a criminal case and driven by prejudice might promote rather than counter oppression and inequality.
Or, if a group is not acting out of prejudice, the group may be acting with the knowledge that they are not contributing to the good of the greater community by supporting a defendant. And even with good intentions, a collective intervention in an individual case might still undermine broader goals of uniformity and regularity when social movement actors choose to intervene in some, but not other, courtrooms and cases.
Whether these communal interventions into individual cases seem problematic will depend on one’s idea of the rule of law—a notoriously contested concept.
For example, a traditional formalist conception of the rule of law, one insisting that judges must enforce all procedural rules in a neutral and uniform way, free of prejudice or popular meddling, might clash with a vision of popular intervention on the side of defendants.
Opening up decisionmaking at the individual level to the impulsive or biased preferences of unelected groups would imperil the neutrality and generality of criminal justice on the ground. In contrast, a more “responsive” conception of the rule of law might welcome popular intervention when it allows members of the public to engage in the process of defining the contours of legal meaning in adjudication.
This conception of the rule of law would welcome multiple sources of legal authority
and might even welcome some irregularity in the interest of promoting legal decisionmaking that is more responsive to social needs and local democratic inputs. Many communal interventions into everyday justice fit comfortably into an idea of the rule of law that encourages multiple sources of legal authority, including direct public participation. When community bail funds post bail, for example, they help shape legal and constitutional understandings of the institution of money bail and the meanings of concepts like “community” and “public safety.”
Under a responsive ideal of the rule of law, such communal interventions on the side of defendants represent a desirable form of popular participation in the production of legal meaning.
One’s view of how communal resistance in the criminal courthouse fits within the rule of law will therefore go hand in hand with one’s conception of how the contours of the rule of law interact with democracy, participation, and lawmaking. Moreover, it will depend on how one views the potential of political engagement in individual criminal cases, a theme echoed in the scholarly debate over jury nullification.
Although beyond the scope of this Essay, this complex analysis will be an important job for future work: to parse through various mechanisms of facilitating popular participation, and to reject some while embracing others, along a range of conceptions of the rule of law and its relationship to substantive justice. For now, one might agree with the central argument of this Essay—that our methods of everyday adjudication would benefit from moving beyond a neat dichotomy between the interests of the public and the interests of the defendant—without endorsing all forms of communal resistance in the courthouse. And one could support changes in formal rules—for example, changing rules for posting bail that inhibit the work of community bail funds—in an effort to bring existing strategies of communal intervention in sync with formal ideals of the rule of law.
But this is not the end of the matter. Running alongside divergent conceptions of the rule of law is yet another idea: that we might need to set aside our complete fidelity to the rule of law (however conceived) in the face of widespread injustice. Carol Steiker’s writings on the relationship between mercy and the rule of law bring out this idea. Steiker argues that when institutional relationships result in overly harsh treatment and punishment of defendants, the idea of mercy can provide a “necessary counterbalance.”
In this account, opening up the processing of individual criminal cases to mechanisms of discretionary mercy might be scary and unpredictable, and even run counter to the rule of law; and yet, the ideal of mercy may still be necessary to combat the harsh nature of everyday criminal justice.
As Steiker writes of the alarming nature of some forms of jury nullification, “[I]n our time, the alternative—the unending spiral of mass incarceration—looks a lot worse.”
In a similar vein, Paul Butler has written with respect to race-based jury nullification that “[i]f the rule of law is a myth, or at least is not applicable to African-Americans, the criticism that jury nullification undermines it loses force.”
Under this view of the relationship between justice and the rule of law, the importance of the rule of law bends in the face of widespread injustice such as that found in the American carceral state. If in the vast majority of cases we do not have a baseline of the rule of law, then our fidelity to it is misplaced.
This critique continues to resonate in the United States today, where we face an “unending spiral of mass incarceration,” in the context of a set of criminal procedures that lead people most impacted by everyday criminal adjudication to conclude that the rule of law is, indeed, a myth. This is especially true at the bottom of the “the penal pyramid,” where “rules hardly matter at all” as state actors rush poor people and people of color through the court system without careful attention, purpose-giving, or adjudication of guilt or innocence.
At the bottom of the penal pyramid, the rule of law begins to disappear.
This recognition might relax our idea of what kind of participation the system allows, up to when it clashes with due process concerns for individual defendants.
Depending on the “rules” governing any one mechanism of participation, to open up the criminal courtroom to new forms of participation might require being comfortable undermining the rule of law in order to promote larger ideals of substantive justice in an unequal or unfair system. Indeed, it may be that it is precisely these forms of popular participation that offer the greatest hope for pushing back against the “unending spiral[s]” of mass incarceration, supervision, and police violence that make up the carceral state. Drawing inspiration from this conception of the place of the rule of law in a profoundly unjust system, in the next and last section of this Essay I gesture toward a direct connection between facilitating communal interventions in criminal adjudication on behalf of defendants and the possibility of large-scale decarceration.
B. Procedure and the Possibility of Decarceration Today
We cannot separate out the intractability of mass incarceration from the powerlessness of those caught up in it.
Part of the path toward decarceration may therefore lie in opening up criminal justice institutions to the relatively powerless voices who have not played a large role in getting us to the place where we are.
There is reason to believe that if we open up criminal procedure to more popular input from below, the result would be a system that is profoundly skeptical of much of the status quo in criminal justice today. To be sure, not all bottom-up interventions on behalf of defendants will be interventions that we all can agree are good ones, but they will tend to be interventions that shift power imbalances: not just shifting power away from prosecution but also shifting power away from the dominant idea that the criminal legal system is the best and only way to contend with communal ills. In this way, opening up criminal procedure to allow “the People” to support defendants facilitates discourses that are part of an “abolitionist ethic”—what Allegra McLeod describes as a “gradual project of decarceration,” changing how we think about the purposes of criminal law and procedures themselves.
Drawing a direct line between collective participation in individual cases and the larger project of decarceration surely requires more study. And perhaps recent electoral victories by “progressive” prosecutors, such as former civil rights lawyer Larry Krasner in Philadelphia,
undermine the notion that it is the only way to achieve decarceration.
But, significantly, this is how movement actors engaging in collective practices on behalf of defendants understand their work: as a way to build the power necessary to truly transform criminal justice. When activists post bail for a stranger, or engage in a participatory defense campaign, they see themselves as “practicing abolition every day”
and engaging in “abolition in the now”
—moving away from the incarceration of poor people and people of color, and toward other ways of addressing wrongdoing and promoting public safety. These movement actors bring with them sophisticated understandings of the history and discourse surrounding seemingly neutral procedures—their intention is not simply to intervene using existing procedures but also to disrupt the normalcy of those procedures by laying bare the ways in which they function to perpetuate structural inequalities.
With bail, for example, the goal of community bail funds is rarely to become permanent fixtures of a local pretrial system, but rather to push for the abolition of bail and even pretrial detention altogether.
These groups do not simply study or document widespread forms of inequality; rather, they practice the undoing of those forms of inequality through collective acts of intervention in individual cases.
Communal support of a defendant can thus be disruptive in the sense that it can call into question basic assumptions about the operation of everyday justice. But such collective resistance is not mere protest or civil disobedience; it is a method of democratic contestation over the meaning of justice in a structured and civil setting. Agonistic participation is a way to bring in collective viewpoints that call into question our modes of criminal law and procedure themselves and yet do so under regulated conditions that demand respect for both sides.
To allow the people in on both sides does not require that we abolish the police, end all prosecutions of misdemeanors, or close all jails and prisons, but it does demand that we be open to putting those options on the table.
In this way, constructing criminal procedures so that they allow participation on the side of the defendant can help produce a more substantial public discourse over legal, political, and constitutional meaning in the realm of criminal law.
Maintaining an adversarial system with the people on both sides makes room for forms of popular intervention that either deny that a wrong has been committed at all, or, more provocatively, seek to unearth the ways in which the allegation of a wrong can serve as a cover for forms of social control and group domination. Our consensus-based methods of trying to facilitate discussions and deliberation around issues of local justice have not been up to the task of lifting up these ideas on their own. Moving beyond consensus, we can also create contestatory spaces in which the public can hash out competing perspectives on the meaning of justice in their communities, pushing us to consider new ways of thinking about and reacting to violent or undesirable conduct. If these voices, opinions, and visions are not a part of the discourse around criminal law and procedure, then we risk failing to ask ourselves the most difficult questions about whether our dominant modes of processing criminal cases are right or just. Public participation on both sides of criminal cases therefore carries with it the potential to lead us not just to more democratic criminal law but also to less criminal law.
Herbert Packer believed that by theorizing competing models of criminal procedure, he could in turn shift on-the-ground practices and understandings of why and what we punish.
At the same time, Packer cautioned that there was a limit to due process, writing that “[w]e sorely need to . . . ask ‘what’ and ‘why’ [we punish] before we ask ‘how.’”
In this Essay, I have attempted to argue the inverse proposition: By expanding the “how”—by opening up our procedures to communal contestation—we can facilitate more productive interchanges on “what” and “why” criminal adjudication should be. Without the voices of the most marginalized, that conversation—over the meaning of justice, over how to best respond to wrongdoing—will not truly reflect the full scope of the multiple publics who are a part of everyday justice.
We are in the throes of a new age of local criminal law and policy reform in the United States, reform that goes beyond changing substantive criminal law statutes and rewriting sentencing laws to include big-picture rethinking of our criminal processes. If we can value public participation beyond representation by the police and prosecution, then we can open up our visions of how we craft criminal procedure and interpret doctrine in new and important ways, moving toward local criminal adjudication that is more responsive to the multidimensional demands of the popular will.