A reflection written by Sean Langberg
Here is what a person often experiences after they are arrested in Brooklyn. First, they are handcuffed and put into the back of a NYPD police car. At this point, it is in a person’s legal interest not to talk to the police in any way, including telling them that a crime did not happen or that the police arrested the wrong person. After the person is held in a cage at the police precinct, and perhaps interrogated by a detective, during which it is also in their legal interest not to speak, they are taken to court for an arraignment, the first appearance in front of a judge. In the courthouse prior to the arraignment, people are held in large groups in a single cage, waiting for attorneys to call their names from a tiny interview booth. A person’s legal counsel, usually a public defender, interviews the person for five to ten minutes, gathering some details about the circumstances of their arrest and explaining the possibility that the person might have to immediately go to jail at Riker’s Island.
If the person is lucky, the court staff will call their case within a couple of hours after the discussion with the lawyer. Meanwhile, they are waiting in a communal cell while metal doors slam, people yell, and NYPD officers look on. Once their case is called, they are led, handcuffed, into the courtroom and approach the defense area in front of the judge. They are told not to speak by their attorney and the judge. In some cases, if a client does decide to speak, the judge pauses the arraignment and has them held until it can be “second called,” perhaps hours later. If the arraignment proceeds, the prosecutor, defender, and judge engage in a jargon-filled colloquy including numbers of statutes, legalese of crime and procedure, and within 2-3 minutes, it is over.
The person is either told they are released until the next court date or they are hauled off to jail. In the former scenario, very often they are told to wait for a protective order that was issued against them during the arraignment. Often, people can wait an hour or more for the court staff to print the piece of paper. If it’s a protective order against someone in their home, the person is given a three-hour window during which they can be escorted by a police officer to their home to quickly gather some belongings before they are rendered unhoused. If the judge sets bail that the person cannot afford, they are then put on a bus to Riker’s Island and can only be contacted by family members several hours later.
Outside of the five to ten minutes during the interview with their attorney, the person has not spoken with a person in authority about their case. Do they know anything about the alleged crime? Do they have any immediate medical concerns? Do they understand what happened during the arraignment? Is their family taken care of during this time? Does the judge know anything about them? Do they know when they will be able to see their loved ones? When will they be allowed to eat? To drink water? To sleep?
That is just the first 24 hours after someone gets arrested. The dystopia of the criminal legal system has onlybegun and will get worse.
A central tenant of the criminal legal system, as illustrated by the arrest and arraignment process, is that the client does not speak, the lawyer does. Critical legal empowerment (CLE) aims to turn this paradigm on its head. CLE aims to place grassroots groups and those traditionally considered as “clients” in leadership, and legal professionals in supporting roles. CLE rejects technocratic approaches and embraces community-based efforts to democratize and redistribute legal power.
These methods open space for communities to engage in legal work and builds upon – but offers something district from – progressive legal approaches such as movement lawyering, law and organizing, and community lawyering. Inspired by scholars of critical race theory, CLE requires self-reflection, humility and a commitment to critical praxis—a groundedness in the grassroots.
My Journey to CLE
My journey to working in the criminal legal system is one of privilege and outrage. As a white, housed, and healthy person living in Brooklyn, I am fortunate that the criminal legal system – from beat cops to the mayor – do not prioritize controlling my life. I am neither stopped nor frisked, and I am not the subject of the tough-on-crime policies so common in New York City politics. But I have witnessed plenty of harassment and intimidation of people of color, from the street to the courtroom. I remember watching police officers jump out of their car on Herkimer Street and frisk two Black teenagers after they left high school, as I walked by toward the subway. I remember watching a patrol car shine several industrial flashlights on a group of Black men standing on Nostrand Avenue and drive off, as I and other white people sat outside at an adjacent restaurant. I remember watching person after person hauled off from Kings County Criminal Court to Rikers Island, most unhoused, with mental health problems, or experiencing substance use issues.
Witnessing how the criminal legal system operates in the real world combined with internships with public defender officers made me determined to explore a better way. Instead of a noble method of seeking truth, the system is one of individual and community control. It does nearly nothing to help those ensnared in the system, nearly nothing to solve the root causes of crime, and nearly nothing to create safe neighborhoods. We must find a better way.
CLE as Concept and in Practice
CLE is particularly attuned to the nefarious ways in which the criminal legal system traps and controls individuals and communities. It recognizes that the system extends far beyond the walls of a courtroom and prison cell. It can start as soon as a child enters school and is met by police officers and metal detectors. It can extend far beyond when the cage doors open after a prison sentence, as people on parole struggle to find housing, employment, and health care. Finally, CLE realizes that criminal acts are often the result of collective failures that drive poverty, drug addiction, and mental health issues, rather than inherent criminality within “bad” individuals. The methods that CLE promotes are broad and include:
- Community paralegals – informally trained advocates who bridge the chasm between communities and the legal system, with a focus on elevating community needs and demands. This can include people trained in the use of law libraries.
- Community driven-litigation – litigation strategies that reverse the outdated view of lawyers that sees them as experts, rather than agents of and collaborators with communities. This can include reducing legalese when discussing legal strategies and translating documents into the language most used by the affected communities.
- Accompaniment – pairs advocates with people involved with the legal system to guide, hold accountable, and bear witness to injustices. Particularly relevant to the criminal legal system is the participatory defense movement.
- Popular education – brings legal knowledge to communities most affected by the criminal legal system, particularly know-your-rights trainings and co-designing resources that can be distributed after professional advocates are not available.
Critical Legal Empowerment Symposium
The Bernstein Institute for Human Rights, in conjunction with the NYU Law Review, hosted Critical Legal Empowerment: Strategies for Community Built Justice on February 24-25, 2022 to bring together leading CLE practitioners, academics, movement leaders, and donors to join a conversation on what is needed to create an American and international legal ecosystem that is truly just. The symposium featured plenary sessions addressing CLE methods, obstacles, and the path forward for practitioners in the field. In addition to the large group sessions, there were smaller community action workshops where specialists addressed challenges and opportunities in their respective areas, including the criminal legal system.
The central question guiding the criminal legal system workshops was how to support communities to achieve system-transformation from the inside out. Held over three days in February and March 2022, the sessions wove together contemporary movements including abolition, restorative justice, jailhouse lawyering, participatory defense, and antiracism. The facilitators for sessions were Jhody Polk, the founder and director of the Legal Empowerment and Advocacy Hub, and Alejo Rodriguez, the director of Collaborative Advocacy at Zealous.
Workshop One: Defining the Cycle of Incarceration and its Intersection with Critical Legal Empowerment
The first of the three workshops examined the scope of the access-to-justice problems within the carceral system and introduced critical legal empowerment as a methodology and movement. Attendees contemplated where they believe the cycle of incarceration begins. A common answer, particularly among lawyer-centric advocates, might be when somebody is arrested or when someone is sentenced to a prison term. CLE views the cycle of incarceration far more broadly. Multiple attendees eschewed viewing the cycle starting on any kind of individual level, such as the arrest of a single client. Alexis, a trained psychologist, sees incarceration starting at a systemic level that has a certain vision, such as carceral control, for certain people it deems unworthy of liberties that others enjoy. Another workshop participant contributed that the cycle is a cycle by design, so the CLE community should investigate who designed the system as a step toward reforming it. Alejo agreed, saying that seeing the incarceration cycle in individual terms is letting the designers of the systemic cycle off the hook. One attendee, a participatory justice expert, gave an example of the cycle. She detailed how people enter prisons in her state of Alabama, lose their jobs as a result, receive no jobs training while in prison, and end up back in prison after their initial release because people have no way of earning a sustainable income. Jhody Polk contextualized the criminal legal system within history and within broader systems of oppression. She drew connections between the American legacy of slavery and criminal justice, noting the roots of both lie within the same soil of the control of Black people. Alejo Rodriguez reminded the attendees that the concept of felon disenfranchisement – barring those convicted of a felony from voting – began shortly after the end of the American Civil War, when Black people were technically released from slavery and able to be arrested and imprisoned. In other words, once widespread enslavement of Black people ended, incarceration was the next tool of marginalization. Jhody also raised questions such as “How can we humanize systems and institutions?” “What is the role of ‘human rights’ in the American ecosystem?” “What are the gaps and what do we need to be successful in our own spaces?” Additionally, Jhody prompted attendees to think about the meaning of terms commonly used, but ambiguously defined, such as “criminal,” “community,” and “justice.”
Attendees closed out the session by defining what legal empowerment means in the context of the criminal legal system. One attendee described it as redefining the relative power of judges, prosecutors, defendants, and public defenders to be equal rather than a hierarchy with defendants on the bottom closely followed by public defenders. Instead, all parties in the courtroom should be eye to eye, physically and metaphorically. Along with that would be disposing of dehumanizing terms such as “inmate” and “offender.” One attendee described this transition as not just about political correctness but making the shift to a better system overall.
Workshop Two: Jailhouse Lawyering and other Forms of Critical Legal Empowerment in Practice
The second session turned to a living example of CLE in the criminal legal system. Jhody Polk described her experience with the Jailhouse Lawyer’s Initiative (JLI), a national project that she co-founded that advocates for the legal empowerment of current and former jailhouse lawyers and law clerks. It is illustrative of one model of legal empowerment that centers on community paralegals, people trained in basic laws and skills who work with community members to solve legal problems together. Jailhouse lawyers are a prime example given the obvious restrictions that incarceration places on people’s education and incarcerated people’s constitutional right to assist one another, even without a law degree. JLI targets three primary areas with its work: building a national network of current and former jailhouse lawyers, co-developing training and curricula that focus on legal education and legal empowerment for currently incarcerated peoples, and supporting justice-impacted individuals to leverage their skills and expertise for opportunities in employment and education post-release.
Jhody discussed the inspiration for the project, tying in themes from the first session about where the incarceration cycle begins. She sees the cycle as starting in communities (e.g., schools, homes), going through the criminal system, and then back to communities. Legal empowerment for her, began in the prison law library, where most jailhouse lawyers get their start. Jhody made clear that jailhouse lawyering is not only about receiving sentencing relief, but in fact it is also an exercise in civil and human rights; a person’s right to advocate for themselves does not end when the prison door clanks shut.
The program starts with the basics – how to access the court through petitions and motions. JLI participants, many of whom are in prison for life, are trained in trauma-informed practices, social-emotional learning, and motivational interviewing. Instead of a one-way relationship such as a lawyer dispensing advice to a client, both the law clerk and the client are learning from each other. Jhody is working with outside experts and JLI participants, including the Bernstein Institute, to build a curriculum for prison law clerks and others on the inside.
The difference between the traditional lawyer’s approach to advising clients and the JLI model is stark. Expertise and power are decentralized and democratized. That is critical legal empowerment in practice. Jailhouse lawyers are merely one example of community paralegals who could be involved in the criminal legal system. One could imagine a paralegal conducting “know your rights” trainings at places targeted by police such as public housing, advising people after an arraignment about available resources, and fielding phone calls from concerned community members as a 911 alternative.
The final part of the second session explored a commonly discussed issue: how to bring about systemic change in a profession that most often deals with individual clients. One participant noted the tension between “the client” as a concept and the larger issue the advocate might be addressing (e.g. bail reform, parole liberalization). In particular, the participant raised the challenges of how to publicize a client’s injustice to galvanize media coverage and how to make judges aware of an injustice when that same judge is the one who will decide the fate of a client. Tyler Walton, a Legal Empowerment Fellow at the Bernstein Institute, suggested that to move past the paradox of the individual versus the collective, we must shift the costs of reform off of the affected community. For instance, instead of a client facing the “trial tax” if they reject a plea offer and take a case to trial to set a legal precedent for future clients, the law should be reformed so that the client is not forced to gamble with their life in the first place.
Workshop Three: Envisioning a Future Criminal Legal System Transformed by Critical Legal Empowerment
The third and final workshop was forward-looking. The central question posed to attendees was how and where to start implementing CLE in the criminal legal system. Jhody Polk’s priority would be community law schools that were able to scale-up the type of preventive training and education that the Jailhouse Lawyer’s Initiative conducts. A key hurdle to this vision is the prohibition on the “unauthorized practice of law” that bars non-lawyers from advising clients. Modifying this rule would be key to advancing CLE.
Tyler Walton agreed that popular education is crucial, in addition to seeing “the law” as one with more accessible topics such as civics and politics. Included in this would be creating more accessible libraries for people who are incarcerated. I suggested forming an informal hotline staffed by community paralegals, perhaps law students, who people could consult rather than calling the police. One participant suggested increasing pro bono and accompaniment services in criminal court, like how LIFT, a New York non-profit, does in Family Court. Another attendee, a psychologist and researcher, would urge the academy to pair with on-the-ground movements rather than keeping research on criminal justice within the confines of universities.
CLE is not only the anecdotes about projects that were shared during the workshops. There is a significant literature that outlines evidence-based approaches that improve the criminal legal system. From coast to coast, projects are underway that reject the traditional ways of punishing people for engaging in certain behavior. In Boston, the Ten Point Coalition is a group of local clergy who mobilize communities to respond to youth violence with strategies such as civilian night walks through certain neighborhoods to engage young people who may be in need of a variety of social services. In St. Louis, an organization called CivTech created a website to help residents navigate the overly complicated court system in hopes of preventing jail time for traffic and other low level offenses that are ignored by too many until it is too late. In California, select cities refer youth who have engaged in harmful behavior to an entity called a Neighborhood Opportunity and Accountability Board consisting of community leaders, clergy, and justice-impacted individuals to craft an action plan to foster accountability and repair harm. These examples illustrate how CLE can address problems across the entire incarceration cycle, as it was broadly defined during the workshops. CLE methods can interrupt behavior before it begins and redress harm without the brutality of prisons, all while being led by communities themselves rather than outside actors.
Critical legal empowerment is a framework and practice it has much to offer those seeking to reform the criminal legal system. It aims to decentralize and democratize legal knowledge and power. The current criminal legal system is one built upon the principles of retribution and confinement. CLE offers a way forward – restoration, collaboration, and healing. The Bernstein Institute’s 2022 Critical Legal Empowerment Symposium brought together advocates and other professionals who can begin to make this vision a reality.
CLE, however, is not a silver bullet. In many ways, the movement is still in its nascent form. Public policy is generally geared toward short-term, quick fixes that address immediate concerns, most often facing those that have political clout. Obviously, the nuanced tools that CLE provides to those facing the wrath of the criminal legal system, people with some of the least political capital in American society, are longer term. They will likely be rejected, at least at first, by many courts, lawyers, and staff, who often are apprehensive of changing the ways of yore. From a court’s perspective, a community paralegal, for instance, might get in the way of the firm grasp that judges, prosecutors, court staff, and correctional officers hold over clients’ lives. On the other hand, a public defender might fear that any tweak to the system, no matter how positive in the long run, might disrupt the delicate balance between appeasing judges and fighting injustices.
Most long-term, upstream solutions to current or impending catastrophes, whether it be climate change, global conflict, or the traumatizing impacts of the criminal legal system, will be a hard sell to funders and policymakers who desire immediate results and measurable outcomes. A CLE approache in the criminal legal system may need to market itself as improving the current system and getting concrete results, even though loftier goals such as abolition and democratization are the internal goals of the CLE community.
The criminal legal system is broken. Between Jhody, Alejo, and the workshop participants, the consensus was clear: the system’s tentacles are far-reaching and trap people by design. As a future actor in the system, I will be susceptible to the pressures that all too often grind down advocates until they burn out or submit to the status quo. When I inevitably begin to feel these pressures, I will have the chorus of CLE advocates in the back of my mind urging me to bring in marginalized voices, be led by democratic values, and, ultimately, transform a system of harm into one of healing.
 Meg Satterthwaite, Critical legal empowerment for human rights, OpenGlobalRights (May 27, 2021), https://www.openglobalrights.org/critical-legal-empowerment-for-human-rights/.
 To see members of the National Defense Movement, visit https://www.participatorydefense.org/hubs.
 For more examples see Leah Sakala & Nancy La Vigne, Community-Driven Models for Safety and Justice, 16 Du Bois Review: Social Science Research on Race 253–266 (2019), https://squareonejustice.org/wp-content/uploads/2019/10/roundtable-oct2018-Community-Driven-Models-for-Safety-and-Justice-by-Leah-Sakala-and-Nancy-La-Vigne.pdf; see also Beyond Jails: Community-Based Strategies for Public Safety
Vera Institute of Justice, Beyond Jails: Community-Based Strategies for Public Safety (2021), https://www.vera.org/beyond-jails-community-based-strategies-for-public-safety.