Bronx Defenders Video Controversy Reveals Limitation of the Non-Profit Legal Services Model

The Bronx Defenders, a legal services provider for indigent clients, found itself in a high-profile  controversy over participation of two of its public defenders in a rap video. Bronx Defenders formed in 1997 with a message of holistic lawyering, departing from the then traditional model of legal services that restricted legal assistance to the issue the client sought without looking at the circumstances that initially brought the client in contact with the legal system. One of the core principles of holistic defense as Bronx Defenders coins it, is “a robust understanding of, and connection to, the community served.” They define their mission as holistic and innovative.  It seeks to get to the root cause of poverty by providing a team model comprised of legal support to civil consequences to criminal convictions, social workers and therapists. 

Leaving aside whether the video advocates violence towards police officers, and you can read the excellent post by Mark Draughn that makes the good case that it does not, but simply taps into the frustration of the black community that daily experience death and police brutality. This is what artists do, and in particular the origins of rap. You don’t need to be a rap aficionado to understand the first line signals a bubbling and bursting sense of frustration: “I spit the shit the streets got to feel.”  This line begins after a montage of images of police brutality, where the black community did not find any legal redress from Trayvon Martin to Eric Garner.  The reference to Malcolm X as the evidence of the song being anti-cop again reflects a total misunderstanding of Malcolm X as a pivotal historical figure for human rights of oppressed people and his statement: “By Any Means Necessary”.  He never advocated violence, but was regularly accused by the media of doing so.  He did however support self-defense, self-preservation.  With the upcoming 5oth death anniversary of Malcolm X , it seems even self-identified progressives still have much to learn on Malcolm’s legacy.  In all the controversy, the chorus of the song encouraging the community to keep faith and urging officers not to shot was completely ignored.

My hands up!
Dun’ feel like they just don’t understand us
Gotta stay strong, hold on, keep our heads up!
Officer, please, don’t shoot! Cuz our hands up
My hands up, my hands up!

Law professors Martha Minow and Robert Post write of the need for us to reinstill trust in the legal system, especially among law students. “In the wake of the recent grand jury decisions in Ferguson and Staten Island, outrage and despair are reverberating across the nation, including at the law schools where we teach. Many of our students are struggling to reconcile their ideals of justice with what they perceive as manifest injustices in the criminal law system.” Conscientious lawyers and law students have always even before Ferguson had to negotiate the fine line between upholding laws that negatively impact communities they serve and being an effective player in the same legal system.  This is precisely what  attorney Kumar Rao sought to do, as he stated in his resignation letter, which is to advance the interests of the community that he was hired to serve consistent with the its mission.

For Bronx Defenders and any non-profit to survive, they rely heavily on government funding, private donors, and strategic placement of corporate law partners on their Boards to do the necessary work of legal services delivery. It’s a bargain we all live with, because the alternative of no services seems worse. However, ultimately, the decision-makers over the mission of the organization will be those who fund it. The Board of Bronx Defenders agreed to increased oversight of the organization by requiring a review of its governance and mandatory training of employees. This remedial plan was accepted by Elizabeth Glazer’s Mayor’s Office of Criminal Justice. With this incident, we will see more involvement of state and city agencies regulating the mission of social justice  organizations based on differing viewpoints.  Criminal justice lawyer Scott Greenfield makes the empassioned point about how this action taken by the city simply penalizes the organization, and the community it serves. I agree.

So, even if Bronx Defenders worked diligently to create a community-centered, holistic lawyering practice that seeks to present communities with compassion and empathy, this mode of legal services comes close to the edge and in potential conflict with non-profit law and the Board’s obligations. The message here is that community lawyering is at odds with the non-profit organizational and funding structure. When the Mayor threatens its 20 million dollar funding, the most Bronx Defenders can do to protect their work is to force the lawyers to resign, beg mea culpa, and suspend the Executive Director without pay for 60 days to make sure that the lines of lawyering remain where those in power feel most comfortable. Much of the support letters against cutting funding reasoned that this was one lapse in judgment in an otherwise stellar history of representation. While Rao states he did not have a chance to review the video, he agreed it was a poor decision. I wonder, was it a poor decision? Or one that was in fact in line with its mission of a “robust understanding” of the community it serves, except that  those who hold the purse do not like what the community truly feels.

Chorus: My hands up!
Dun’ feel like they just don’t understand us

Having represented numerous individuals with criminal records to obtain employment under a legal program promoting “Re-entry”, I recall the hearing procedures which required my clients to apologize for their mistakes, and prove their worthiness such that they can enter the formal economy of work and opportunities. It was a humiliating experience for them, especially as they already had served their penalities. I raise this example because in some way this is what Bronx Defenders, despite is mission of innovation, and other similar legal non-profits, have to do to seek re-entry back to the respectable politics of serving poor. What options do well meaning advocates have when taking a stand to the threats would mean loss of much-needed indigent defense for poor communities? At stake are 25o employees, or the over 35, 000 clients it has served. Innovation and aggressive legal advocacy has its limits, and those limits are set by those who retain funding power over non-profit legal services providers.

Given the role that funders, be they private or city, play in regulating the mission of non-profits, the controversy reveals the serious limitations of the non-profit model in being able to independently represent the view of the often poor, marginalized communities it serves.  Ultimately, their humanity, feelings, and desire to be heard in our legal system will be silenced in exchange for services. Perhaps, that is a bargain the community is willing to make, and the community may need to find alternative spaces to recoup its humanity.

One of the key underpinnings of the #BlackLivesMatter movement is to show the humanity of black lives. They write: “Rooted in the experiences of Black people in this country who actively resist our de-humanization, #BlackLivesMatter is a call to action and a response to the virulent anti-Black racism that permeates our society. #Black Lives Matter is a unique contribution that goes beyond extrajudicial killings of Black people by police and vigilantes.”

To ignore the pain of grieving mothers who lose their children to police brutality without consequences is a systematic dehumanizing of their lives.  To silence their ability to share their anger, frustration denies a key part of their existence, their humanity. In this political compromise to retain funding,  The Bronx Defenders is forced to ignore that pain, as does the Mayor in his efforts to reposition himself as the friend to the police. Through this process, innovative, holistic lawyering fails under the current structure of funding and non-profit governance.

Holistic defense in the current make-up of our legal system isn’t so holistic, and in fact, is structurally incapable of being so. This is what the controversy reveals.

Women of color organizers through INCITE! have long cautioned the dangerous impact of the non-profit model on social justice activism anthologized in their book, The Revolution Will Not Be Funded: Beyond the Non Profit Industrial Complex. INCITE! is a nation-wide network of radical feminists of color working to end violence against women, gender non-conforming, and trans people of color, and our communities. This analysis or critique really had not taken firm hold among legal non-profits.  But this regulation and mainstreaming of social justice movements through funding and governance laws called the non-profit industrial complex has led many women of color activists to explore alternative means of funding, especially after observing how social movements in more repressive countries rely on self-funding.

I am hoping that this incident will make legal non-profits that are genuinely concerned about aligning their mission and work in service of the communities that they serve and that seek to dismantle the root cause of poverty will begin to either stand up to the threats of the purse or develop alternative models of funding its work, depending on which position advances the interests of the community.  Good governance for a social justice oriented organization that prides itself on innovation like Bronx Defenders must find ways to self-support, or else, it will find itself repeatedly compromising its mission to serve the community to save its own organizational self.  Here, without any replacement of a huge source of funding (20 million), it seems the Executive Director, and lawyers became casualities, but ultimately, the community suffers.