If I had ever doubted the power of words, Judge Benson made their importance all too clear at my sentencing last month. When he sentenced me to two years in prison plus three years probation, he admitted my offense “wasn’t too bad.” The problem, Judge Benson insisted, was my “continuing trail of statements” and my lack of regret. Apparently, all he really wanted was an apology, and for that, two years in prison could have been avoided. In fact, Judge Benson said that had it not been for the political statements I made in public, I would have avoided prosecution entirely. As is generally the case with civil disobedience, it was extremely important to the government that I come before the majesty of the court with my head bowed and express regret. So important, in fact, that an apology with proper genuflection is currently fair trade for a couple years in prison. Perhaps that’s why most activist cases end in a plea bargain.
Since that seems like such a good deal, some people are asking why I wasn’t willing to shut my mouth and take it. But perhaps we should be asking why the government is willing to make such a deal. The most recent plea bargain they offered me was for as little as 30 days in jail. (I’m writing this on my 28th day.) So if they wanted to lock me up for two years, why would they let me walk for an apology and keeping my mouth shut for a while? On the other hand, if they wanted to sweep this under the rug, why would they cause such a stir by locking me up? Why do my words make that much of a difference?
With all criminal cases, of which 85 percent end in a plea bargain, the government has a strong incentive to avoid a trial: In addition to cutting the expense of a trial, a plea bargain helps concentrate power in the hands of government officials.
The revolutionaries who founded this country were deeply distrustful of a concentration of power, so among other precautions, they established citizen juries as the most important part of our legal system and insisted upon constitutional right to a jury trial. To avoid this inconvenience, those seeking concentrated power free from revolutionaries have minimized the role of citizens in our legal system. They have accomplished this by restricting what juries can hear, what they can decide upon, and most importantly, by avoiding jury trials all together. It is now accepted as a basic fact of our criminal justice system that a defendant who exercises his or her right to a jury trial will be punished at sentencing for doing so. Transferring power from citizens to government happens when the role of citizens gets eliminated in the process.
With civil disobedience cases, however, the government puts an extra value on an apology. By its very nature, civil disobedience is an act whose message is that the government and its laws are not the sole voice of moral authority. It is a statement that we the citizens recognize a higher moral code to which the law is no longer aligned, and we invite our fellow citizens to recognize the difference. A government truly of the people, for the people, and by the people is not threatened by citizens issuing such a challenge. But government whose authority depends on an ignorant or apathetic citizenry is threatened by every act of open civil disobedience, no matter how small. To regain that tiny piece of authority, the government either has to respond to the activist’s demands, or get the activist to back down with a public statement of regret. Otherwise, those little challenges to the moral authority of government start to add up.
Over the last couple hundred years of quelling dissent, the government has learned a few things about maintaining power. Sometimes it seems that the government has learned more from our social movement history than we as activists have. Their willingness to let a direct action off with a slap on the wrist while handing out two years for political statements comes from their understanding of the power of an individual. They know that one person, or even a small group, cannot have enough of a direct impact on our corporate giants to really alter things in our economy. They know that a single person can’t have a meaningful direct impact on our political system. But our modern government is dismantling the First Amendment because they understand the very same thing our founding fathers did when they wrote it: What one person can do is to plant the seeds of love and outrage in the hearts of a movement. And if those hearts are fertile ground, those seeds of love and outrage will grow into a revolution.