Tuesday, May 8, 2012
Broken skyline, movin' through the airport
She's an honest defector
Now her own protector
Tom Petty, "Time To Move On"
A few weeks ago, I posted an entry, prompted by an episode of "The Good Wife," about the much maligned Alford plea. With an Alford plea, the defendant pleads guilty but maintains his innocence, and it is for this and other reasons that the plea is disfavored by prosecutors and the criminal justice system. In the post, I concluded that
Prosecutors are told to avoid Alford plea and a number of states ban them. But given the realities of the current American justice system, maybe we should embrace them. The public defender system is in a state of emergency, and it means that the bulk of defendants charged with crimes cannot present a reasonable defense....
Obviously, there are a plethora of reasons to be uncomfortable with the Alford plea, but there are also a plethora of reasons to be uncomfortable with the current state of criminal defense. And maybe a proliferation of Alford pleas will force us to confront that reality.
I see a recent post by Jenny Carroll on Concurring Opinions and her forthcoming article, "The Resistance Defense," as spiritual cousins to this claim regarding Alford pleas. In turn, I see that the resistance defense as the spiritual cousin to conscientious objection.In her post, Carroll, a professor at the Seton Hall University School of Law, notes that
Last Saturday, Khalid Sheikh Mohammed ("KSM"), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned. Instead of pleading, the defendants resisted. KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety. The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.
Carroll then notes that
Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new. The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate. A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself. In my forthcoming article, The Resistance Defense, I examine the implications of this defense. As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law. First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value. The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome. If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow. Second, these procedural rights have a substantive component. They help to define notions of guilt and appropriate punishment. If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.
In her article, Carroll points out that "American legal history is replete with stories of the resistance defense" being used by defendants ranging from abolitionist John Brown to anti-World War I advocate Eugene V. Debs to Fundamentalist Church of Jesus Christ of Latter-Day Saints President Warren Jeffs. The resistance defense can take various forms. At trial, Brown "rose only to express outrage at the proceeding itself." Debs "did not contest the factual basis of the charge" against him but instead "sought to put the Espionage Act itself, and the government’s efforts to enforce the act, on trial." And Jeffs initially did not participate in his trial at all (not giving an opening statement or cross-examining witnesses) before engaging in the most perfunctory of defenses.
According to Carroll, by engaging is a resistance defense,
These defendants, often at times of crisis in the nation’s social or political identity, seek to put the system itself on trial. In the context of the criminal court, they create a singular forum for their own, previously excluded narrative. Through their defense of resistance, they seek to compel acknowledgment of the procedural and substantive shortcomings of the law that failed to account for their story and so their existence. Their defense pushes the law to reckon with the previously unimagined, and so to be transformed at the most fundamental level — at the intersection of the law and the governed....
In their resistance defenses they challenged the ability of the law and the system it supported to account for their lives and stories — and so the lives and stories of those like them living outside the boundaries drawn by the law. They rejected any possibility that their arrests, convictions or sentences could be legitimate or properly sanctioned by "mere"procedural protections. They construct instead a story of the government and the law as so riddled with deficiencies that even those devices designed to check its power are tools of oppression. Whether in silence or through outbursts, they tell a story of resistance and suppression that transcends their time and their causes to challenge the very conceptualization of the system and the law.
Carroll offers two primary reasons that the community should care about the resistance defense, the first being that
the "decision" to relinquish the very check the system creates on government power tells a story. It may be a commentary on the truly overwhelming nature of the government’s power. Even the right to speak truth to that power pales in the face of the often inevitable outcome (conviction) and the daunting consequences of daring to speak (loss of a discount for cooperation). Perhaps it is a commentary on the precision of the government’s exercise of its prosecutorial discretion, which ensures that only the truly guilty face accusation. But perhaps it is the hopelessness of the system itself. Defendants find themselves accused by an all powerful executive branch, only to be appointed a guardian of their rights by a judicial branch (in the form of a public defender) who, crippled by overwhelming case loads and the three branches’ reluctance to grant resources to a defense, may have little choice but to recommend a triage approach to the case, regardless of the defendant’s narrative. Even with the benefit of a truly zealous advocate, a defendant may find his narrative constrained and limited in the telling such that the right feels illusory at best, a sham at worst.
This reason is what I see as the main analogue between my argument about Alford pleas and Carroll's contentions about the resistance defense although those giving Alford pleas opt in (by taking the plea, albeit with reservation) while those asserting a resistance defense opt out. But Carroll also offers a second reason to be interested in the resistance defense, which is that
In a system that depends on narratives, the decision to accept the right to a defense is a moment of enormous possibility when the defendant and the citizen juror may seek to redefine the role of the state either microcosmically (in this one case, and in regard to the is one defendant) or macrocosmically (when the case garners national attention and forces a shift in the political philosophies of the nation). Either way, the defense offers a moment when ordinary people, upon hearing a defendant’s story, decide what they will accept from the government in their own lives. The narrative may be limited, but its presence matters. Resistance defendants challenge the notion that defendant’s narrative can and should be constructed by the state. In their resistance they push a story that simultaneously must and cannot be told, at least not in the courtroom. In this they raise doubts about the value of the very system that would accuse, prosecute and punish them. For we non-defendants, they raise a red flag that system, at least for some, is broke or gone awry in its efforts to construct all stories before us. In this moment of doubt, is perhaps the greatest possibility for the law.
This argument provides a nice segue into my argument that the resistance defense is a spiritual cousin to conscientious objection. In a sense, the analogy has already been made. As Carroll notes, "Jeffs saw himself as falling within a long tradition of people who break secular laws to maintain their religious faith," such as "[r]eligious adherents [who] refuse to fight wars (or even register for drafts)." And the very basis for the charged against Debs was "that Debs's remarks implied that he approved of conscientious objection to the draft in violation of the Espionage Act of 1917." J.M. Balin & Sanford Levinson, The Canons of Constititional Law, 111 Harv. L. Rev. 963, 978 (1952).
Of course, the Supreme Court eventually found a greater right to conscientious objection in its landmark opinion in Gillette v. United States, 401 U.S. 437 (1971), concluding that conscientious objectors can object on non-religious grounds. A few months later, in Clay v. United States, 403 U.S. 698 (1971), the Supreme Court would reverse Muhammad Ali's conviction for refusing to be inducted into the U.S. Armed Forces. The voices of the conscientious objectors and the attention given to Ali changed the way that society looked at war and forced the Court to legitimize their claims. And their claims function much the same as those claiming the resistance defense: Just as defendants asserting a resistance defense reject any possibility that their arrests, convictions or sentences could be legitimate or properly sanctioned by "mere" procedural protections, conscientious objectors claim that war and their participation in it can never be legitimized. Indeed, one of the holdings in Gillette was that conscientious objectors have to object to all wars and not just particular wars. At first, conscientious objectors were still forced so serve in the military in noncombat roles; now, they can avoid service altogether.
It's no stretch to say that conscientious objectors played a significant role in ending the draft, with President Nixon incorrectly thinking it would shut them (and other war protesters) up. See WIlliam A. Kamens, Selective Disservice: The Indefensible Discrimination of Draft Registration, 52 Am. U. L. Rev. 703, 731 (2003). Meanwhile, the military, "[h]aving found that crushing dissent by way of court-martials could be counterproductive, costly, and highly embarrassing,...became much more willing to grant conscientious objector status to servicemen who requested it." Robert N. Strassfeld, "Lose in Vietnam, Bring the Boys Home," 82 N.C. L. Rev. 1891, 1908 (2004).
Of course, that leaves the question of what the justice system is to do with those who seek to assert the resistance defense. Carroll presents three option:
One possibility is to limit the resistance defense to those stories that flow from some other constitutional narrative. This construction recognizes the defense only to the extent that the defendant’s story is able to link his purported belief system to those rights assigned value by the Constitution itself. For example, if a defendant can couch his argument in terms of free speech, assembly or religious exercise, his resistance defense will be recognized, and his narrative allowed. Other narratives, which are not linked to some fundamental right that is assigned constitutional value, would continue to suffer exclusion....
A second possibility would be to allow the defendant to present any justification, excuse or ideology in response to the state’s accusation. This is a fluid construction of the resistance defense unfettered by legal boundaries. The defendant could tell his story in the language he chose, drawing on whatever explanation, excuse or justification that he deems relevant to the jury’s consideration of his guilt. The defendant could create a true counter- narrative that stands outside the state’s construction of its own narrative or the law....
At the other end of the spectrum, we might disallow the defense altogether or at least refuse to provide a meaningful way for defendants to make the argument. In many ways, this is to maintain the status quo in which the resistance defense falls outside those recognized and designated legal defenses and as such is never presented to the jury. In this construction (or attempted destruction) of the defense, there is a recognition that the sphere of the criminal trial and courtroom is limited. There are stories that cannot be told in the rooms in which a defendant’s guilt is decided.
In closing, Carroll frames the issue much like the military likely framed conscientious objection during Vietnam in deciding to more freely grant conscientious objector status rather than increase the number of court-martials:
Admittedly refusing to recognize the defense will likely create a more efficient system, but it would be a mistake to confuse a failure to recognize the defense with its complete banishment. Just as they do now, defendants will rise in courtrooms across the country and seek to present their counter-narratives. When the court moves to exclude their stories, they will respond in the only way they can: they will actively resist. Whatever efficiency is gained by seeking to block the narrative, its emergence through resistance will raise the recurring questions of the ability of the law to expand when confronted with stories that confound its original meaning. The guerilla-like presence of the untold story in the courtroom undermines what is gained by allowing narratives at all: that the law is more than a system of rules, it is a fluid body that draws meaning from the lives to whom it is applied. Without this mobile construction of the law, the law’s legitimacy, and the legitimacy of the systems that flow from it, become increasingly dubious.