Civil Disobedience - Legal Implications of Civil Disobedience

Legal Implications of Civil Disobedience

Barkan writes that if defendants plead not guilty, "they must decide whether their primary goal will be to win an acquittal and avoid imprisonment or a fine, or to use the proceedings as a forum to inform the jury and the public of the political circumstances surrounding the case and their reasons for breaking the law via civil disobedience." A technical defense may enhance the chances for acquittal but make for more boring proceedings and reduced press coverage. During the Vietnam War era, the Chicago Eight used a political defense, while Benjamin Spock used a technical defense. In countries such as the United States whose laws guarantee the right to a jury trial but do not excuse lawbreaking for political purposes, some civil disobedients seek jury nullification. Over the years, this has been made more difficult by court decisions such as Sparf v. United States, which held that the judge need not inform jurors of their nullification prerogative, and United States v. Dougherty, which held that the judge need not allow defendants to openly seek jury nullification.

Governments have generally not recognized the legitimacy of civil disobedience or viewed political objectives as an excuse for breaking the law. Specifically, the law usually distinguishes between criminal motive and criminal intent; the offender's motives or purposes may be admirable and praiseworthy, but his intent may still be criminal. Hence the saying that "if there is any possible justification of civil disobedience it must come from outside the legal system."

One theory is that, while disobedience may be helpful, any great amount of it would undermine the law by encouraging general disobedience which is neither conscientious nor of social benefit. Therefore, conscientious lawbreakers must be punished. Michael Bayles argues that if a person violates a law in order to create a test case as to the constitutionality of a law, and then wins his case, then that act did not constitute civil disobedience. It has also been argued that breaking the law for self-gratification, as in the case of a homosexual or cannabis user who does not direct his act at securing the repeal of amendment of the law, is not civil disobedience. Likewise, a protestor who attempts to escape punishment by committing the crime covertly and avoiding attribution, or by denying having committed the crime, or by fleeing the jurisdiction, is generally viewed as not being a civil disobedient.

Courts have distinguished between two types of civil disobedience: "Indirect civil disobedience involves violating a law which is not, itself, the object of protest, whereas direct civil disobedience involves protesting the existence of a particular law by breaking that law." During the Vietnam War, courts typically refused to excuse the perpetrators of illegal protests from punishment on the basis of their challenging the legality of the Vietnam War; the courts ruled it was a political question. The necessity defense has sometimes been used as a shadow defense by civil disobedients to deny guilt without denouncing their politically motivated acts, and to present their political beliefs in the courtroom. However, court cases such as U.S. v. Schoon have greatly curtailed the availability of the political necessity defense. Likewise, when Carter Wentworth was charged for his role in the Clamshell Alliance's 1977 illegal occupation of the Seabrook Station Nuclear Power Plant, the judge instructed the jury to disregard his competing harms defense, and he was found guilty. Fully Informed Jury Association activists have sometimes handed out educational leaflets inside courthouses despite admonitions not to; according to FIJA, many of them have escaped prosecution because "prosecutors have reasoned (correctly) that if they arrest fully informed jury leafleters, the leaflets will have to be given to the leafleter's own jury as evidence."

Along with giving the offender his just deserts, achieving crime control via incapacitation and deterrence is a major goal of criminal punishment. Brownee argues, "Bringing in deterrence at the level of justification detracts from the law’s engagement in a moral dialogue with the offender as a rational person because it focuses attention on the threat of punishment and not the moral reasons to follow this law." Leonard Hubert Hoffmann writes, "In deciding whether or not to impose punishment, the most important consideration would be whether it would do more harm than good. This means that the objector has no right not to be punished. It is a matter for the state (including the judges) to decide on utilitarian grounds whether to do so or not."