activist defense

on the intersection of activism and legal systems

Category: postulates on legal systems

former correction commissioner writes that imprisonment is by its very nature destructive

Cecily McMillan elbowed a New York City police officer in the eye as officers cleared Zuccotti Park of Occupy Wall Street protesters in March 2012. She recently served 58 days of a 90-day sentence on Rikers Island, a city jail. In today’s New York Times, the New York City correction commissioner from 2003 to 2009 has a letter to the editor regarding McMillan’s July 24 op-ed:

Cecily McMillan describes a grinding, degrading experience during her short stay on Rikers Island. Imprisonment is by its very nature destructive of human dignity, and the best antidote is for society to use it less often.

McMillan is a graduate student at the New School. Her attorney is appealing her conviction. She maintains that she struck the officer instinctively after he groped her breast.

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judge who presided over wounded knee trials will step down from the bench in april

On Thursday, Judge Warren Urbom announced that he will retire in April. Urbom managed cases against more than 130 defendants arising from the 71-day American Indian Movement occupation at Wounded Knee in 1973. He dismissed charges against the majority of the activists and found 6 guilty. The Eighth Circuit Court of Appeals overturned 4 of those convictions.

On August 14, 1974, Judge Urbom acquitted the defendants in U.S. v. Jaramillo, because military equipment and officers were used at Wounded Knee contrary to the Posse Comitatus Act of 1878. That Act limits the military’s role in domestic law enforcement activities to situations involving congressional authorization or a presidential declaration that a civil disorder exists. As Army personnel at Wounded Knee influenced decisions and serviced and maintained equipment on loan to the Bureau of Indian Affairs and the U.S. Marshals, Urbom concluded that there was a reasonable doubt as to whether law enforcement officers were lawfully engaged in the performance of their official duties.

Urbom gained the trust of the defense committee, because his acquittals saved many defendants from being tried by South Dakota juries. Yet some legal workers and defendants subsequently felt betrayed, such as when Urbom found activists guilty or concluded that Indian tribes didn’t have complete sovereignty. As John William Sayer wrote in Ghost Dancing the Law,

It is true that the rule of law, particularly as enforced by judges like Nichol and Urbom, offered the Wounded Knee defendants some protection from excessive government abuse. But the defendants and their attorneys, including those who give credit to Nichol and Urbom, quickly point out that without their well-organized and very public campaign around the trials, the rules might not have provided protection or allowed alternative voices to be heard in the courtroom.

a haiku on the u.s. bail system

Inspired by today’s Guardian article by Sadhbh Walshe:

jailed for protesting

and if you cannot post bail?

sentenced before trial

on the birthday of angela davis, the new york times promotes more profiling and police

In 1970, the FBI put known radical Angela Davis on its Ten Most Wanted list, because a kidnapping intended to free three inmates turned into a fatal shootout and involved a gun registered in her name. She went underground for approximately two months, was captured, and was incarcerated for 16 months while awaiting trial. An all-white jury in San Jose, California, acquitted her of all charges in June 1972.

Davis subsequently helped start Critical Resistance (CR), an organization dedicated to abolishing the prison industrial complex, which CR defines as the “overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.” As today’s New York Times article by John Tierney points out, “the United States has the world’s highest reported rate of incarceration.” Tierney’s article supports hiring more police officers and focusing on ‘high-crime’ areas to prevent crime from occurring, as a way to reduce the number of people sent to prison.

Yet that approach would result in even more intense police surveillance, further controlling people through the fear of violence or punishment. Davis, in contrast, supports drug treatment and mental health programs, demilitarized schools, a living wage, and decriminalization of specific populations (e.g., undocumented immigrants). According to Generation FIVE, we can “organize and expand community-based models of justice that move beyond restoration of ‘normal’ conditions and instead seek to transform the conditions that perpetuate … forms of violence.”

new play considers the morality of punishing political crimes more severely

Although it arguably violates the First Amendment, judges still consider defendants’ political beliefs and public statements when deciding on sentences. This occurred, for example, in the cases of Lynne Stewart and Tim DeChristopher. Today’s New York Times includes an article by playwright David Mamet on his new play related to the morality of punishing political crimes more severely than other offenses:

In “The Anarchist” a woman has been convicted of murder, for participation in a bank robbery by a self-proclaimed political organization. She has served 35 years, a big portion of her life sentence, and pleads to be released; if the crime were mere robbery-murder and not deemed political, she would, by custom, have been paroled, with good behavior. Her argument has merit.

The rationale for continued incarceration under these circumstances is that in light of the prisoner’s beliefs, she poses more of a threat than someone convicted of a murder unrelated to ideology. But is this true? And even if so, isn’t it inconsistent – as Mamet points out – for a court to disregard political motives when it comes to mitigating factors but give them weight when it comes to aggravating ones?

a postulate: those with whom society disagrees frequently wind up in court

According to John William Sayer,

Debates over the rule of law too often seem to focus on whether the law went astray. Yet a body of law designed to protect property and political power need not stray very far in its application, if at all, to discredit and destroy those who seek to voice alternatives to the assumptions that underlie the prevailing social order. Few, if any, who have even come remotely close to having an audience for such change have escaped the courtroom.

Ghost Dancing the Law: The Wounded Knee Trials (1997), page 230.