For those of us who have had the privilege (whether class, race, gender, or general societal privilege) to attend law school and become licensed attorneys, we have a political and moral duty to use that privilege, power, and knowledge of the law to protect our communities from the crushing might of the state. One of the most violent and powerful arms of state power is the criminal system: the power to cage human beings and deprive them of their liberty. If we truly believe in solidarity, we must use and share our knowledge of a complex, oppressive system with those it seeks to incarcerate, while also checking our privilege as attorneys. We bring a certain important skill set to movement solidarity work, but these skills do not give us authority over movement work—rather, we are another tool in the toolbox. We stand shoulder to shoulder with these communities in these struggles, and it is our duty to do so humbly and keep the most vulnerable at the center of these fights against state repression.
If you are new to practicing criminal defense, it is vital that you connect with an experienced criminal defense attorney and hopefully one with radical politics, as this practice (like many other areas of law) is not intuitive but rather complex and very much dictated by the culture or common practice of specific courthouses, judges, and prosecutor’s offices. If you are an experienced criminal defense attorney, I urge you to mentor younger attorneys, particularly attorneys of color who (myself included) must fight for our rightful place in this profession, and to mentor and train with generosity, patience, and humility.
Compared to those communities most often ensnared and targeted by the criminal system simply by virtue of their skin color and background (i.e., our black and brown communities) and at constant risk of being snatched off the street at any given moment, our political dissident clients are in many ways arguably at a great advantage as they may be able to prepare for when they may encounter law enforcement. Having this foresight allows us attorneys to prepare and train our politically active clients for these encounters and how to minimize the harm to themselves and their communities. But it is critical that we continue reminding ourselves and our political communities that the vast majority of those entrapped into the criminal system did not have the privilege of a “heads-up” and do not often have entire movements or attorneys on call to show them solidarity and support.
Protest and Civil Disobedience
In protest or civil disobedience situations, I have advised the community members, movements, and activists I have worked with to prepare ahead of time, take several precautions, and learn their basic rights and how to invoke them. But most importantly, I have framed advice to communities I have worked with generally as being about the collective. That is, we all are most politically and legally safe when we protect each other, knowing that what we say and do impacts not only us but also our friends, our families, our organizations, our movements, and our communities. It is about collective safety, collective liberation, and collective solidarity, and we should be advising our communities the following for when they may encounter state agents/law enforcement:
- Be mindful of your racial, gender, sexual orientation, class, and citizenship privilege when you are part of a movement and engaging in political actions. By virtue of your privilege(s), you may be able to take certain risks that others cannot. And often those with less privilege will pay a heavier price for risks you take than you will. The way you are treated by state authorities absolutely shifts based on your perceived privileges, so it is important to center those state-targeted communities, those with the most to lose, and those with whom we are standing in solidarity.
- Write in permanent marker on your arm any local area code number you may want to call, such as your emergency contact or a legal hotline, as when you are seized and arrested, you will not have access to your phone.
- Make sure someone has your emergency contact information and can handle your affairs if you are held in the system, such as your family’s or partner’s number, information for your children if they need to be picked up, keys to your apartment to feed your animals or your landlord’s contact information, your employer’s information if you may miss work, and any urgent medical issues you have so that people on the outside are able to advocate for your care.
- If you need prescription medication, carry it with you only in its original container.
- Do not carry any weapons or drugs on you, or anything you don’t want in the hands of the police as this could add more charges.
- Put a numeric screen lock on your phone (disabling the thumb print ability to open) in case you are arrested so police cannot go through and search it.
- Operate on a buddy system if going to a demonstration; check in and out with this person.
- Be particularly careful if you are not a U.S. citizen (especially undocumented), are on probation or parole, have an open criminal case, or have any open warrants (including unpaid tickets and fines).
- Clear any outstanding warrants you have before risking arrest, such as paying off outstanding criminal case fines or previous criminal plea surcharges, showing up for a court date you missed, or completing any portions of a sentence. If you have outstanding warrants, this can lengthen your detention.
- If you are stopped by the police, ask “Am I free to leave?” If they say no, ask “Are you detaining me?”
- If searched, do not consent to any searches of you or your bags; say loudly “I do not consent to a search” while physically complying with their instruction and not resisting.
- If you are arrested, try not to resist, including not flailing your arms when the police are cuffing you or touching law enforcement in any way.
- The only thing you should say to the police when you are arrested is “I’m not talking without my lawyer,” whether or not they read you your rights, and stay silent.
- At the precinct or in jail, do not discuss your arrest on the phone with anyone other than a lawyer you are calling for legal advice (because all calls except to your attorney are recorded).
- Do not speak to anyone other than your lawyer about your case (not even cell mates).
- Do not sign anything (except, in New York City, your desk appearance ticket slip if you are being released from the precinct).
- You should only give your basic biographical and other non-incriminating information to the officers.
- If you witness an arrest or police brutality, you may legally videotape the police (if you feel safe doing so), but do not get too close or interfere as this can escalate the physical and legal danger for the person being arrested and for you. If the officers tell you to move or threaten you, consider moving and saving the video in case your phone or camera is destroyed.
- Think twice before posting any video or photos you take to social media. Videos and photos can be sensitive evidence, and ideally you should first get the consent of the persons whose arrest you were documenting to release this footage and the consent of their defense attorneys. Consult an attorney first if possible.
- Get badge numbers of police officers arresting and/or beating people.
- Get the names and birth dates of those being arrested.
The arrest and arraignment process can vary state to state. The example below is New York specific; however, the general framework—not only dealing with prosecutors and bail but maintaining political solidarity for our clients—is universal.
In New York City, once people are arrested, they will either be released from the precinct with a desk appearance ticket (DAT) telling them to come back to court at a later date, or they will not be released and instead will be put fully through the system by being sent to central booking or criminal court.
If your clients are not released, they will meet you, their defense attorney, and stand before the judge for arraignment where their formal charges are read against them in open court. In New York, the time between arrest and arraignment if your client is held should not exceed 24 hours, although it often does owing to backlog. The difference between a client receiving a DAT and being put through the system is only that a DAT is essentially a delayed arraignment or a pause in the process between arrest and arraignment. Officers use their discretion and may determine, after looking at certain people’s records, that they are not a flight risk and can be allowed to go home from the precinct if they promise to come back to court later by signing the DAT slip. On the day they are scheduled to come back for their DAT date or arraignment date, they will meet you and then have their formal charges read against them in front of the judge in open court.
As a defense attorney, if you are arraigning people who have been denied a DAT and thus have been brought from the precinct to criminal court for arraignment, keep in mind you are meeting them at one of the worst times in their life. They have not had a good night’s sleep if they were held overnight, nor a decent meal, nor a shower, and they may not have been able to call any family or friends to alert them to their arrest. So empathy should be your first response.
When you receive your client’s complaint, or formal charges written up by the prosecutor’s office, your first step is to ask the prosecutors in the arraignment part what the plea offer is and whether bail is being requested. You have the chance there to negotiate somewhat the plea offer and perhaps some of the bail, although often the prosecutor standing on the cases that day for arraignment is not the actual prosecutor who will be assigned that case, so the prosecutor you speak to may not budge much from the written offer.
Client Interview and Bail
Armed with this information, you will then meet and interview your client. The focus of your interview with your client greatly depends on whether the prosecutor is asking for bail. If the prosecutor is not asking for bail, you mainly want to obtain as many ways to contact your client as possible, particularly if the case will not be resolved there at arraignment with a plea. Obtain the client’s phone number, e-mail address, mailing address, and perhaps a family member’s contact information. If the prosecutor is asking for bail, then you will need to do a much more extensive interview and will want to consult with a mentor on how to go about the interview and bail argument.
The official reason for the prosecutors asking for bail is that your client is deemed a “flight risk,” meaning the prosecutor has determined your client may not come back to court to fight the charges. So bail is technically to ensure your client’s return to court, though unofficially bail is often requested if your client has been arrested several times, even if your client does not have a criminal record and has returned for all previous court dates, or if the charges are severe, or quite simply as a punitive measure and a way to pressure your client into taking a plea. So regarding your interview with clients where bail is being requested, you want to obtain as much information as possible on their community ties, such as where they live, how long they have lived there, with whom, what family they have in the city, where they work, for how long, any community groups they are a part of, etc.
One program that can take the place of bail and even having to argue against bail is supervised release, whereby clients are released without bail but monitored in the community, if they are eligible according to certain risk assessment scores. Supervised release representatives are usually in the courtroom, so have them screen your client first for eligibility prior to arraignment. If your client is not eligible, you know you will have to argue against the bail on the record, and there is also a chance the judge will refuse your client’s entry into the program.
Now you are ready to arraign your client. If your client is not taking a plea, is not eligible for supervised release, or the judge refuses to grant supervised release, you must now argue on the record against bail being set. Remember to be careful with what you put on the record when arguing against bail, as that can be used against your client later. As a final resort, your client’s family can either post the cash amount of the bail or go through a bail bondsman so long as the family can put up a percentage asked for by the bonds office (typically 10 percent), after which the bondsman will pay the rest and your client will be released.
It is our duty: our duty to fight for our freedom, and our duty to win. We must love and protect one another. We have nothing to lose but our chains.
Typical Protest-Related Charges
For political protest arrests, the typical charges are the misdemeanor offenses of criminal trespass, obstructing governmental administration, resisting arrest, and inciting a riot, as well as the violation-level offense of disorderly conduct. For clients who have no record and have had little to no contacts with the criminal system in the past, in New York the prosecutor’s offer will usually be an “adjournment in contemplation of dismissal” (ACD) whereby the prosecutor is offering to adjourn your client’s case for six months, and in that time if your client does not get rearrested, at the end of the six months the case will automatically be dismissed and sealed. An ACD is not a guilty plea, there are no fines, and your client does not even have to come back to court. But it’s important to note that during these six months, the case will still be an open pending criminal charge, and if your client is charged with misdemeanors, it will show up in a background check if your client is applying for financial aid, for a job, or for school. You can try to negotiate something shorter than six months, but prosecutors are often resistant. Still, an ACD is usually the best offer available, as it avoids your client having to take the case to trial and risk getting a criminal conviction.
Another typical plea offer is to the violation of disorderly conduct. Disorderly conduct is not a crime, and pleading to it will not result in a criminal conviction. It does, however, require your client to enter a plea of guilty on the record and pay a $120 surcharge, and perhaps complete a few days of community service. A disorderly conduct plea should be sealed from any record after one year of pleading, so it will not come up after that in any background check. If your client is not charged with misdemeanors but only violation-level offenses, there is little incentive not to take the case to trial, other than your client’s time commitment and ability to come back to court over a period of several months. If the offer on your case is to a criminal charge and other conditions, speak to an experienced defense attorney before making any decisions on whether or not to take the plea, as this will be very fact, case, and client specific.
If your client is not a citizen, it is vital that you consult with an immigration attorney before you even arraign the case or take any action or inaction on the case. If your client is on probation or parole, or has other open criminal cases, it is also critical to consult with an experienced criminal defense mentor before you arraign the case. Sometimes you may need to consult with both types of attorneys. Entering or not entering a plea to anything greatly depends on the specifics of that client’s situation.
Representing a politically motivated client often has the additional layer of communicating and working with that client’s organization or movement members. The most important thing is to make sure there is good communication between you and your client as well as the community members supporting your client. This is particularly important if the community members wish to speak to the media or hold a protest or press conference on behalf of your client, as your client and the risks he or she is facing are and should always be the first priority. You, as the defense attorney, may also be approached by the media, and having a good working relationship with your client and good communication is vital in deciding if you want to make any representation to the media, and, if so, what that will be. All of this can greatly impact your client’s case, particularly if you anticipate taking it all the way to trial.
Keep Our Eyes on the Prize
As attorneys fighting against the brutality and inhumanity of the criminal system, we are honored and privileged to be entrusted to fight for our clients’ and their communities’ freedom, and to fight shoulder to shoulder with them in our larger fight against a criminal system. It is also an incredibly uphill and exhausting battle, but one that we survive and sometimes win when we fight alongside each other—alongside these movements for justice and alongside fellow attorneys who lift each other up. As Assata Shakur said, it is our duty: our duty to fight for our freedom, and our duty to win. We must love and protect one another. We have nothing to lose but our chains.