Participatory Defense: Humanizing the Accused and Ceding Control to the Client

Abstract

This contribution to a Symposium on Disruptive Innovation in Criminal Defense focuses on participatory defense, a growing movement that humanizes the accused and empowers their families to assist or even challenge defense attorneys. By shifting notions of expertise and questioning deeply embedded power structures between attorneys and clients, participatory defense is more than disruptive—it is truly radical.

The movement has met with great success in individual cases and is contributing to systemic reform, yet has not been welcomed with open arms by all public defenders. I suggest that this resistance has, at least in part, to do with the movement’s central tenet of taking power and case direction away from lawyers. Although they seek to defend the accused and reform the system more broadly, defenders are still part of the power structures that exclude non-professionals from the court systems and silence the people most affected—something I say as a former defender myself. The disproportionate poverty and political powerlessness of most accused people compound this by making public defenders even less accountable to their clients than other attorneys. I argue that defenders should incorporate participatory defense tenets into their practice—indeed they must—because the model is consonant with the ethical rules governing lawyers. These duties, particularly the mandate to respect a client’s decisions about key aspects of his defense, were recently reaffirmed by the U.S. Supreme Court in McCoy v. Louisiana. More broadly, participatory defense has the potential not only to transform the criminal law system, but also to change the defender practice model, returning us to the zealous advocacy and client autonomy at the heart of lawyering.

Keywords: Public defender, participatory defense, professional responsibility, client autonomy, zealous advocacy, overcriminalization, attorney-client relationship, McCoy v. Louisiana, expertise, Model Rules of Professional Responsibility, legal ethics