I wrote the following to a judge recently regarding the sentencing of a client convicted of a trespass violation during a demonstration.
Most of the people found guilty in American courts tried to achieve a personal end by violence or fraud. By doing so, they betrayed all of us, refusing to follow the rules to which we have consented, and to live peacefully and honestly with us in the joint enterprise of a democracy.
Although its proponents are arrested by the same police, charged with the same paper forms, and handled by the same prosecutor, civil disobedience—civil resistance as its proponents call it-- is something completely different. It is not a betrayal, but a radical act of cooperation. The defendants in these cases, as in the sit ins in Southern lunch counters in the 1960's and those participating in Gandhi's famous salt march to the sea, are motivated by an unbearable grievance and a burning sense of justice. But they also are believers in another set of rules which take precedence: they do not take up the sword, they don't lie, hide, steal or run away. Their protests are acts which are calculated to get more attention, to assert more influence, than signing a petition or writing a letter to the newspaper. But they act peacefully and openly, in a way that, however frustrating to authority, also proclaims their good faith and cooperation as members of a democracy.
There is a story that Hitler once privately told Neville Chamberlain that, if he had Gandhi to deal with, he would shoot him, and if that didn't work, a thousand of his followers, and if that didn't work, then another thousand. As the execution of the young members of the White Rose proved, civil disobedience, nonviolence, was in fact impossible in Hitler's Germany. In Gandhi's case, and Dr. King's, and also in the case before us, civil resistance is a radical act of trust, in the humanity of the police and of the judicial system, that a peaceful attempt to address a burning injustice will not result in a beating, or in an excessive sentence. A Satyagrahi, a seeker after truth, said Gandhi, is “never afraid to trust the opponent. Even if the opponent plays him false twenty times, the Satyagrahi is ready to trust him the twenty-first time, for an implicit trust in human nature is the very essence of his creed.” Louis Fischer, Gandhi (New York: Mentor 1982) p. 36 George Orwell said that Gandhi assumed that “all human beings are more or less approachable and will respond to a generous gesture”. George Orwell, A Collection of Essays, (San Diego: Harvest Books 1981) p. 172 Orwell understood that civil resistance is one of the things we do to express a strongly held opinion in a democracy: “Without a free press and the right of assembly, it is impossible not merely to appeal to outside opinion, but to bring a mass movement into being, or even to make your intentions known to your adversary.” A Collection of Essays p. 178
The legal philosopher John Rawls devoted a section of A Theory of Justice to “The Role of Civil Disobedience”. Like Gandhi, Rawls understood that anyone engaging in civil disobedience intends “to address the sense of justice of the majority and to serve fair notice” of his claims. John Rawls, A Theory of Justice (Cambridge: Harvard University Press 1971) p. 382 Civil disobedience can only occur in a democratic society conceived “as a system of cooperation among equal persons”. p. 383 In a democracy, Rawls says, civil disobedience is therefore “one of the stabilizing devices of a constitutional system....used with due restraint and sound judgment [it] helps to maintain and strengthen just institutions”. p. 383 Judges, Rawls urges, “should take into account the civilly disobedient nature of the protester's act, and the fact that it is justifiable (or may seem so) by the political principles underlying the constitution, and on these grounds reduce and in some cases suspend the legal sanction”. p. 387
A Lexis search on “civil disobedience” reveals New York judges who appear to have followed Rawl's recommendations, without citing him. In People v. Millhollen, 5 Misc. 3d 810 (City Court, Ithaca 2004), involving a tree-sitting protest at Cornell, the Court recognized “that peaceful protest is essential to academic freedom and the function of the University as an educational institution”, not very different from an understanding that peaceful protest is essential to all freedom and the function of the United States as a democracy. In People v. Bordowitz, 155 Misc. 2d 128 (Criminal Court, New York County 1991) , the Court noted that a needle-exchange protest during the AIDS crisis “was not one of mere protest against a statute but was intended to help avert a very real emergency”. People v. Gray, 150 Misc. 2d 852 (Criminal Court, New York County 1991) involved a bicycle protest against pollution on a New York City bridge which was “needed to avert the harms acted against”. In People v. Levi, 149 Misc. 2d 394 (Criminal Court, New York City 1990), involving another AIDS protest, the court found, in exercising its furtherance of justice powers, that given the “minimal” unlawful impact and “laudable” objective, certain defendants “should be entitled to be treated with an approach grounded in the principles of freedom of expression, as well as with compassion”.
The Assistant District Attorney recognized several times in statements he made to the Court that Ms. Mahoney is a good person, a committed individual. Putting aside the question of whether her actions legally constituted the offense of trespass for which she was convicted, Ms. Mahoney herself testified, and the video evidence showed, that she wore a black shroud, carried a sign with the name of a person killed in a drone strike, and lay down briefly in the access road at Hancock Air National Guard Base—a classic act of First Amendment-protected symbolic speech, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Ms. Mahoney's intention, as she testified at trial, was to call attention to the plight of, and demand redress for, innocent people in Afghanistan, Pakistan and other countries, who are killed every day in U.S. drone attacks; some of these drones are operated remotely from Hancock Air National Guard Base. The uncontested testimony also showed that base administration had decided to close the main gate before the arrival of the permitted protest, while two other gates remained open, and that the actions of Ms. Mahoney and others did not block any traffic.
Your honor, in making your decision, we don't ask that you agree with Ms. Mahoney's opinion, or her way of expressing it. We are asking merely that, in rendering sentence, you take into account the importance of civil disobedience in the operation of a democracy. We respectfully urge this Court that the appropriate sentence to accomplish this goal, is time served. Justice Benjamin Cardozo wrote: “There is an old legend that on one occasion God prayed, and his prayer was 'Be it my will that my justice be ruled by my mercy'.” Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press 1949) p. 66