Having been arrested in 2003 while protesting the INS’ terrifying “registration” and detention of Arab and Muslim immigrants, my co-defendants and I had our lucky thirteenth court appearance just before the election. The criminal charges slapped on the 83 arrestees in our case – mostly young people of color engaging in a sit-down demonstration for the first time – were so inordinately high that most were forced to plead guilty on the spot to lesser charges, rather than risk fighting. Some whom the District Attorney labeled “chronic protesters” had been flatly offered 5-10 days jail time, no plea. But, certain that we’d committed no crime by demonstrating, we determined to fight.
The charges were bunk – that we prevented government employees from getting to work, for example, while video showed INS workers passing freely in and out of the building. We itched for our day in court. But after a year and a half in which the DA was “not ready” to try us, the speedy trial clock ran out and our cases were simply dismissed.
We might have felt lucky: beleaguered dissenters suddenly free to go, just in time for the election when we’d be freeing ourselves in a bigger way from the president who managed to make dissent a crime against democracy. But we were not.
We’d been had. Really, who could swallow the idea that the DA forgot to prepare for court? Strategically using due process as a weapon, the DA managed to punish us and curtail our speech for seventeen months, without ever going near a jury.
Under the cloak of due process, police can arrest anyone as long as they claim a reason, even if it’s disproven later. Arrestees can be saddled with whatever charges the DA likes; he isn’t bound by reasonableness. He can make wild charges about intent: for example, that protesters just want to snarl city traffic, not call attention to New York’s crises of education, housing, health care etc. – a rationale the City often asserts when prosecuting civil disobedience. He can charge peaceful protesters as criminals.
The DA then has the discretion to offer a plea bargain or take the case to court. In protest cases, plea-bargaining has come to mean that the arrestee may plead guilty to something slightly less damaging than the DA’s original smorgasbord of misdemeanors. Taking the case to a judge often means being dragged into court repeatedly until the speedy trial clock expires, which can take more than a year. The DA can do this even if he has no intention of actually prosecuting the case; the time is his to waste, and he allows many cases simply to time out But while the case is open, the defendant must avoid political dissent, because protesting is justification for arrest these days. And if they’re rearrested during their case, the charges get still higher and the cycle escalates.
Worse, although the DA rarely bothers to substantiate anti-protester allegations at trial, he’s been using a person’s history of arrest – whether or not they were found guilty – to try to jail them. In the case of demonstrators arrested last year protesting the war on Iraq and the US role in occupying Palestine, the DA secretly reopened sealed and dismissed cases, then cited those arrests when recommending jail sentences for the defendants. If his backroom tactics are upheld in court, the case will become precedent.
Prosecutors’ abuse of discretion in political cases is as old as the hills, and hard to challenge. But in New York City, it’s surrounded now by new, chartable practices that make it more obvious. More than any time in the last two decades, police break up demonstrations by making arrests regardless of whether a law has been broken. The DA applies criminal charges to political arrestees whose acts would once have been considered a simple code violation. To do this, the city dredged up a statute that it uses almost exclusively against dissenters, “Obstructing Governmental Administration;” there was no misdemeanor charge previously in use that characterized peaceful protest as a crime. (The practice is spreading – in upstate NY, protesters were charged with OGA for the first time on Election Day.) And the DA’s dogged pursuit of the right to use past arrests as a stand-in for a criminal record makes the assault on dissent excruciatingly clear.
“In point of fact,” says Kendall Thomas, Director of the Center for the Study of Law and Culture at Columbia University, “we’ve seen these abuses not only by New York City government, but by federal government: shadowing protesters, infiltrating community-based groups over issues from war to the Patriot Act. Though not unprecedented, they are perhaps more shocking in view of that fact that many people are engaged in activism for the first time, or believed that the excesses of past periods were no longer a problem.”
In the shadow of September 11th and war, millions have been moved to dissent, finding politics to be a life-and-death matter. But the veneer of democracy finally cracked last week, when just over half the nation voted that the other half should be silenced entirely.
Meanwhile attacks continue, on activists and on the rights they defend. We served the DA’s seventeen-month sentence of silence, but the INS detainees still wait in jail without lawyers. As the country does violence to democracy, dissent grows. Will dissenters be faced each time we speak with the choice of pleading down to crimes we haven’t committed, or signing up to be silenced by the DA’s case-dragging method? How long will it take for the city to run all of us through the local mill and finally strip us of our right to speak out on national issues? Will the task be done before it’s time to choose the next president? What about a new mayor?
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