March 2005

Views expressed are those of the authors, not necessarily of the AFSC.

How to Use Jail/Court Solidarity

Katya Komisaruk is a lawyer at the Just Cause Law Collective, which represents criminal defendants and victims of police misconduct in California and provides
educational workshops and materials. The full version of this article is at www.lawcollective.org. JCLC, 405 14th St. #1012, Oakland CA 94612; 510/652-9937

Jail/court solidarity is a combination of non-cooperation techniques and collective bargaining that groups of activists can use to take care of each other in the legal system. Jail/court solidarity has been used in the civil rights, peace, environmental, anti-globalization movements.

The leverage for solidarity arises because jails and courts, in order to run smoothly, rely on people to be passive and obedient. Jails expect prisoners to get in line and march where they're told. Courts expect defendants to sit quietly and give up their right to trial. Neither of these systems is set up to deal with large, organized groups of people who simply say, "No, I won't." So when people withhold cooperation and negotiate as a group, the authorities may be forced to agree to their demands. Of course, the demands have to be ones that the jail authorities or the prosecutor are capable of meeting.

Typical demands

• All the people arrested for the same type of incident must receive the same charges and sentence, instead of some (such as leaders or Arab-Americans) being singled out for harsher treatment.
• A sick or hurt person in custody must receive immediate medical treatment.
• Someone who has been locked up separately must be returned to where the rest of the group is being held.

The demand must be clearly explained to the authorities, and then backed up by non-cooperation tactics.

Physical non-cooperation techniques

• refusing to stop chanting, singing or dancing
• refusing to follow orders (if they say stand, then sit; if they say line up, then mill about)
• refusing to move at all
• refusing to wear clothes
• refusing to eat (but not refusing to drink, because negotiations often take longer than one can stay alive without drinking.)

In choosing non-cooperation tactics, it's important to leave room for escalation if demands are not met. Refusing to eat (fasting) is normally the last tactic people use. It's one of the most difficult, but also one of the most powerful forms of non-cooperation. Because it's harder for everyone to communicate and make decisions well when they stop eating, at least one person in each group should refrain from fasting and act as caretaker for those who do fast. The "designated eaters" assist in facilitating meetings and in communicating with supporters, lawyers, media, and the authorities.

Procedural non-cooperation techniques

• not bringing ID and refusing to give names or answer other questions
• refusing to promise to appear in court
• demanding to have the court appoint a free attorney to represent every low-income defendant
• refusing to plead guilty (so the authorities have to hold trials)
• refusing to give up the right to a speedy trial (also known as refusing to "waive time")
• having the lawyers submit lots of motions (written legal arguments, to which the prosecutor must respond) and requiring lots of hearings in court

Using jail/court solidarity

Groups should consider in advance which solidarity demands and non-cooperation tactics they might use at various stages of the action, in jail and in court. Activists who employ jail/court solidarity tactics need to leave plenty of room for those who don't wish to join them. Not everyone can stay in jail or prepare for trial. But then, not everyone has to participate in order for solidarity tactics to work -- it only requires enough people to provide leverage in the negotiation. The strength of solidarity comes from the voluntary agreement of everyone who takes part in it, and from the support given by those who cannot take part.

Solidarity is particularly important when working in coalition, because it helps protect members who are likely to be treated worse than others.

Jail/court solidarity requires that people have good meetings and take the time to listen to each other. Never, ever let the police, jail authorities, or lawyers push the group into a rushed decision. Activists can nearly always bargain for more time. After all, it's simpler for the authorities to give the group another 15 minutes to come to consensus, than it is to carry large numbers of people who've all gone limp.

Examples of jail/court solidarity

The following summaries outline the ways in which different types of solidarity tactics were used successfully in mass civil disobedience actions in two cities. The activists used these tactics to negotiate collectively with the authorities, in order to gain fair and equal treatment. Before each of the demonstrations, activists and their legal teams participated in trainings in which they role-played booking, plea-bargaining, and arraignment, among other scenarios. As a result, they were able to apply solidarity pressure at two key points:

• The activists withheld their names and addresses after they were arrested, to force the authorities to keep them in custody, thereby putting a strain on the jail system.
• The activists pleaded not guilty, and invoked their rights to a speedy trial and to court-appointed counsel, thereby putting a strain on the court system.

In addition, a steady stream of press releases and press conferences helped build public support for the activists, while rallies and vigils at the jails and courts were a visible reminder of those inside.

Seattle, WA

Arrests: Approximately 600 people were arrested over two days of demonstrations in opposition to the World Trade Organization Conference, in November 1999.

Primary Tactics: The vast majority of people refused to give their names and remained in custody for four to five days, while thousands of supporters surrounded the jail. Although negotiations were initiated, the prosecutor never made any realistic offers. So the activists left jail and moved the struggle to the courts. They pleaded not guilty, insisting on speedy jury trials and court-appointed counsel.

Outcome: Only 7% of the activists took deals (diversion, dispositional continuance, guilty plea). As the 90-day window for holding speedy trials narrowed, 92% of the cases were dropped. In the last few weeks before the statutory limit, the prosecution chose six cases to bring to trial. Five of these defendants were acquitted or dismissed. The only activist who was convicted was sentenced to community service and a small fine.

Comments: A large proportion of the defendants were not expecting to be arrested and had not made arrangements to leave work or school for any length of time. This limited their ability to stay in jail. Realizing that many would soon have to go home, they chose to leave custody all together, rather than dwindle away. They then focused on exerting pressure on the court system, which proved highly successful.

Washington, DC

Arrests: Approximately 1300 people were arrested over three days of demonstrations against the World Bank Meeting, in April 2000.

Primary Tactics: About 150 people remained in jail, refusing to give their names or addresses. The chief judge ordered their court-appointed attorneys to file motions for release on recognizance. Most of the attorneys complied, over their clients' objections. When the US Marshals attempted to transport activists to hearings on these motions, the prisoners stripped and tied themselves to their bunks. Those few who were taken to court anyway dismissed their court-appointed counsel and withdrew the motions for release. After several such dialogues, the amused judge ordered the prosecution to negotiate with defense lawyers chosen by the activists.

Outcome: The court-ordered plea bargaining was successful and the misdemeanor charges were reduced to civil infractions carrying a $5 fine. The deal applied to activists arrested at any of the three events. Those who had already pleaded or forfeited bail had the opportunity to withdraw their pleas and take advantage of the negotiated agreement.

Comments: A standing court order imposed financial penalties on the warden, whenever the population of the jail exceeded a certain limit. Since the jail was already at capacity, it took only 150 activists to put the population well over its cap. This pressure ultimately led the warden to seek help from the chief judge, who then forced the prosecution to negotiate.

Determining when solidarity tactics are appropriate

In the situations above, solidarity tactics achieved favorable outcomes from a criminal defense standpoint. In addition, solidarity tactics were used to gain concessions for the activists while they were in jail: prisoners who had been isolated were returned to the group; prisoners were allowed to hold mass meetings or councils of representatives from different groups of prisoners; and attorney/organizer pairs from the legal teams were allowed to meet with the prisoners en masse.

Solidarity tactics were not useful in negotiating on behalf of those charged with felonies or with federal offenses, approximately 15 to 30 people in each city. It was necessary to defend these cases using standard legal strategies. The other activists provided support for the felony defendants by fund-raising, attending hearings, and organizing demonstrations on their behalf.

In order to determine whether and how to use solidarity tactics, activists must research the current capacity of the jails (or temporary holding facilities) and of the court system. Activists should ask their lawyers for predictions about how the prosecutor's office and the judges may react. In addition, they should assess the political forces that might influence negotiations with the prosecution or courts (such as the mayor, the police, the voters, and the business or religious communities).

Criminal defense attorneys occasionally have misgivings about their clients' use of solidarity tactics, although these concerns are often resolved through discussion, if the activists show that they're making informed choices.

Under normal circumstances, both defendant and counsel are fervently opposed to jail time. However, many activists see going to jail as a critical part of their protest, particularly from a publicity standpoint. Moreover, many political defendants prefer to spend a few days in jail, especially when they're in a large group, than to pay fines or do community service. The presence of other activists provides both physical and emotional security that renders the jail experience far more tolerable. Activists generally emerge from custody inspired, empowered, and more sensitive to the circumstances of prisoners who don't benefit from skin or class privilege.

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