Finally a Judge Who Supports Civil Disobedience by Steve Clemens. November 6, 2009
The style and affect of the two African-American Judges couldn’t be more pronounced: Dark-complexioned, gaunt, stern and decorous Edward Wilson in St. Paul is a stark contrast with the light-skinned, jovial, extroverted Judge Darryl Lowe in Omaha. I faced both Judges this fall for acts of nonviolent civil disobedience and left the Courtrooms in Ramsey County, MN and Douglas County, NE with vastly different impressions.
Granted, one Judge presided over a full-fledged jury trial for protest at the Republican National Convention while I encountered the latter after a 30-hour stay in the county jail in Omaha for an initial arraignment or bond appearance. Yet the results were diametrically opposed. Maybe it was due to fighting the charges in one case while being really to “roll over” on the other – but I think that wasn’t the only or primary reason. It was the way Judge Lowe’s face lit up and his whole attitude changed when he discovered this was a case of civil disobedience rather than four aging drunk men in front of him. But I’m getting ahead of the story.
I should start at the beginning of this witness for peace for me. Frank Cordaro and Jerry Ebner of the Des Moines and Omaha Catholic Worker communities respectively encouraged me to join them last summer for the annual nonviolent vigil outside Offutt Air Force Base just south of Omaha which surrounds the anniversaries of the atomic bombings of Hiroshima and Nagasaki. As we baked in the 100 degree heat this year, Frank asked me to return to Nebraska in November for what has also become an annual arms bazaar in downtown Omaha. He was trying to recruit some others to join him in some creative nonviolent action in public protest. He warned me ahead of time: you never know what the Judge you face will do - but evidence from the past is those who are from out-of-state who are arrested will most likely be thrown in jail overnight and should be brought before a Judge the next day. Given the results of last year, if you plead not guilty or no contest, you will likely be issued a fine plus court costs. If you refuse or cannot pay the fine, it will likely mean 4-5 days in jail.
So I packed my bag and drove the six-hour trip to Omaha in order to arrive for our nonviolence training and action planning session which was to take place at noon on November 3, the day before the planned civil disobedience. It appeared ahead of time that there were likely to be four of us who were willing to risk arrest, down from the eight from last year. In 2008, four of the eight were local activists and they received a citation at the police station and were released with a future court date; the other four out-of-state arrestees were transported to the Douglas County Jail and appeared before a Judge the following day. Two of those four pled guilty and received five days in jail when they told the Judge they would not pay the $250 fine and court costs for reasons of conscience. As Catholic Workers, they couldn’t stomach the idea of paying for the “privilege” of protest while their communities were inundated with the needs of the growing homeless and destitute populations in their cities.
The two other Catholic Workers chose to plead not guilty and remained in jail for a future trial. After two weeks, one of them was needed home at his community in Duluth so he changed his plea to guilty and was released with “time served”. The fourth protester remained in jail for 38 days before having his charges dismissed by the Judge at trial when the County Prosecutor failed to present compelling evidence of his guilt. But he had spent 38 days in jail! Lest you think that a waste of time, many Catholic Workers find “ministering” to those behind bars to be not that different than their work with those who have been marginalized by our society and who end up homeless on the city streets. One sometimes finds homeless people who opt for “three hots and a cot” by committing petty crimes and going to jail rather than face brutal conditions on the homeless streets in northern cities as the weather turns colder.
At the nonviolence training, I learned that the four of us who planned to risk arrest were to be joined by two other local people, both seasoned activists – one of whom was 91 years old, the indomitable Peg Gallagher. Because all the participants had participated in numerous peaceful civil disobedience actions in the past, we felt we could dispense the nonviolence training portion of the afternoon and go directly into planning the “action”. The plan agreed to by all was a symbolic “die-in” in front of the entrance to the convention center where the arms bazaar was held, the same place where legal vigils had taken place over the past two days. A lawyer with no criminal trial experience met with us to be sure we were aware of the possible penalties for the action. Each of the three possible charges we would face could carry a six-month jail sentence and/or a $500 fine and conceivably the City of Omaha could seek to prosecute on all three counts. However, the most likely scenario would be a charge of “refusing to leave” and would likely incur a fine for local people and overnight in jail for those of us from states other than Nebraska. We might receive “time served” when we faced a Judge or we might be given an additional fine. There are no guarantees when one “rolls the dice” in committing civil disobedience in what Judge you will get and how the prosecutor will respond. I went expecting to do five days in jail.
Two of the four out-of-towners were Catholic priests and the third was an ex-priest. All had been active for decades in nonviolent protest and Fr. Louis Vitale had more than 200 arrests and Frank Cordaro had spent years in various prisons for his life of activism for peace and justice. Interestingly, Fr. Jim Murphy, had never spent a night in jail despite his participation in numerous other actions where he had risked arrest in the past. This was likely to be his first – and he couldn’t have been in better company to join others who had more experience “locked up for peace”.
As we planned the style and spirit of the action, we discussed how we might respond to a possible fine, making sure each of us were free to chose our own responses without pressure from the others. Louis had already made commitments to speak at several events in Georgia within a few days and Jim had commitments at his parish which he hoped to be able to attend to. Frank and I had hoped to “do the time instead of paying a fine”. Frank told us that we should feel free to take the “St. Paul option” – when the Apostle Paul was arrested during the early years after Jesus’ execution at the hands of the state, sometimes he acted as a common Jewish teacher and took the punishment meted out by the authorities. At other times, Paul insisted on his rights as a Roman citizen in responding to the consequences of his arrest. Frank assured all of us that we should all be ready to invoke the “St. Paul option” if we felt we needed to – the important thing was that we were willing to take risks for peace.
The group planning the action decided we wanted to center ourselves before walking to the Qwest Center where the civil disobedience would take place so we chose to celebrate Mass at the nearby Holy Family Catholic Church. Father Louis would preside and be joined by the church’s former activist Pastor, 80 year old Fr. Jack McCaslin. It was no surprise to see Father Jack who is well known in the city for his leadership in peace and justice concerns. He recently survived a serious heart attack and we were pleased he was able to join us. Jerry from the Omaha Catholic Worker is a member of that parish and showed us the beautiful sculpture of “The Itinerant Preacher, Jesus” which graces the front of the sanctuary. That bronze statue is a moving, life-like presence of the carpenter of Nazareth who has challenged and inspired all of us in this work, whether Catholic or not.
Empowered and emboldened by the Mass, as we headed toward the Qwest Center, Father Jack told us he was hoping to join us! This was no small matter. Alongside his health concerns, he had been told by a Federal Judge that if he is arrested again, he will be sent to prison for six months – no questions asked. But when the Spirit calls, one has to choose whether to act on faith or fear. What an inspiration to have him join us! It looked like our median age would be in the 60s. Peg at 91, Jack at 80, Louie at 77, I’m 59, Frank is 58, Jim is 55, and Mark Kenny, another local veteran of the struggle for justice was to be our youngest at 52. We were surprised when Dan, a member of Nebraskans for Peace joined us at the last minute to add his youthful 22 years to our somewhat grizzled appearance.
A group of about 30 gathered in front of the main entrance to the Qwest Center. One was dressed as a specter of death and the banner in front read “Space Weapons = Death”. I read aloud a statement drafted by group members on why we were there and then a symbolic “die-in” was staged. Several members had to help Peg Gallagher lay down on the sleeping bag she had brought to protect her from the cold sidewalk. Others helped Father Jack down to the ground. After five minutes, it was announced we would move the die-in indoors to the lobby where we were stopped by security and told to leave or face arrest.
Peg Gallagher was processed with a citation right at the scene of arrest while the rest of us were handcuffed and driven to the County Jail. The other three local arrestees were booked and released. The four of us who were from other states were booked into the jail. This process took several hours before we were escorted to our cells. Jim and I were placed in Pod #5 and into A Bay where there were already 20 other inmates. There were two addition bays in our pod for a total of 66 inmates and all the beds appeared to be occupied. Louis was placed in Pod 5 and Frank in Pod 8.
We anticipated that we would go before a judge in the morning but were surprised when the Corrections Officer stationed in our pod asked if anyone wanted to go to the roof for the hour of recreation at 8:30 AM. Although it was still quite cold out, I knew we would be given a jacket so Jim and I were the only two who went outside that next morning. (Over 30 of us went out the afternoon before when the weather was warmer.) Fortunately Father Louis had also opted to go outside so we were able to visit with him between the fence separating our two rec areas. An hour after lunch our names were called to line up to go to court.
Prior to being ushered into the courtroom attached to the jail, on of the Correctional Officers warned to 60 or so of us in our orange jail uniforms: You are lucky today. You have drawn Judge Lowe as your Judge. If you had come tomorrow, you would draw Judge Swartz. Consider yourselves fortunate to have Judge Lowe. He is fair but somewhat eccentric. He might ask you all types of questions. Listen to what he says. If he suggests you might want to take a certain plea, listen to him because he will spell out the consequences to you. We were specifically warned not to talk or say anything in the Courtroom until or unless the judge addressed us.
The next two and a quarter hours were a mix between what appeared to be a made-for-TV comedy or a “Judge Judy”-type show. Judge Lowe’s comments were prolific, personal, outlandish, seemingly inappropriate, compassionate, and paternalistic – you name it. Clearly an extrovert who enjoys his position and power from the bench, the judge uses the platform in his desire to dispense justice. Without knowing the details of each case, it seemed to me that he was quite harsh in some instances and very compassionate or generous in others – but throughout I had the impression of a person who genuinely cared for the people before him.
The court session began with the more serious felony cases and then progressed to the misdemeanors. We had no idea when we’d be called. Finally the Courtroom was down to four older white male defendants. The clock was nearing 3:30 PM and the rapidity of the Judge’s dealing with the previous 4 or 5 inmates made it clear that Judge Lowe was determined to get out of the Courtroom on time.
The Prosecutor called out the next case, Louis Vitale, and added that these last four cases were all on the same charge: failure to leave at the Qwest Center. The Judge right away told us that he often attends events there and quickly asked the inmate before him what was his plea, guilty or not guilty? When Louis responded with “No contest”, the Judge immediately stated “5 days in jail. If you had said guilty, you would have gotten 3 days.” Father Louis tried to speak up to say he was actually requesting a postponement of sentencing so he could travel to Georgia over the weekend to fulfill some speaking engagements he had scheduled. The Judge would hear none of it. “If you want to contest this sentence, bond is $100,000 – to see if you can change my mind. Now get out of here. [To the corrections officers] Take him out of here!”
Next case: Jim Murphy is called to the bench. How do you plead? Jim swallowed and said “No contest – oh, I mean guilty”. “Good call”, the judge responded. “3 days. Next”.
“Case number xxx (I didn’t hear the number but did hear), Stephen D. Clemens. I walked to the podium in front of the Judge’s bench debating in my mind whether to risk the Judge’s anger with a “no contest” plea or to remain safe with the “guilty-as-charged” less-costly route. Just as I was prepared to jump off the cliff with my “no contest –BUT I need to tell the court that I am a regular blood donor – I donate platelets every two weeks in order to help save lives, and if you sentence me to more than three days, I can’t donate again for a year due to federal regulations”, wanting to force the Judge to choose between retributive punishment and saving lives, the Judge looked at me and instead of asking for my plea instead asked “What were you doing?” He had obviously in his haste failed to read the documents before him about the nature of our “crime”.
I responded, “We were protesting, your Honor, against an Arms Bazaar that was at the Qwest Center. Corporations are trying to sell high-tech weapons to the Air Force and space weapons to STRATCOM and we were protesting that.” The puzzlement on the Judge’s face was completely transparent as Frank Cordaro, the last defendant still in the back of the Courtroom stood up and said in a loud voice, “Yes, your Honor, you just sentenced two Roman Catholic priests to jail!” The Judge was even more dumbfounded. He quickly ordered Frank to come forward to confirm what he had said. He was horrified at what had just happened and immediately shouted to the Correctional Officers serving as court bailiffs, “Quick, bring those last two men back in here!” To the Court reporters he said, “Give me back those files. I don’t want to send priests to jail.”
“What, are you all priests?” he asked and I said I’m not even Catholic. He asked more questions about what we had done, the nature of the trade show/symposium at the Qwest Center and quickly apologized to the two priests. “I thought this was a case about four old inebriates, four drunks who refused to leave the Qwest Center. I’m sorry.” He continued to tell us how his parents were involved in the civil rights struggle and how much he respected civil disobedience. “I remember their stories even though I was only 4 years old at the time.”
His entire demeanor had changed 180 degrees. He smiled and laughed and told us he appreciated what we did. Of course he was changing the sentence to “time served” and “I’ll try to get you released as soon as possible. You do realize that might still take a couple of hours, don’t you?” He asked who were our friends in the visitor’s gallery and we introduced Jerry and Cassandra who were there to support us. Before we left the Courtroom, Judge Lowe reached down from the Bench and shook each of our hands. He thanked us for acting on our convictions, telling us, “I hope you will return to Omaha next year again.”
Finally, an African-American judge who understands that the road to his judicial robe runs directly through the legacy of Martin King and Rosa Parks. Too bad Judge Edward Wilson continues to deny that reality, thinking his own “bootstraps” got him to his seat at the Bench of Justice.
Judge Edward Wilson looked down from on high. The Judge’s perch in the Ramsey County Courthouse is designed to give the impression that the one who occupies the “high ground” in this legal battlefield has the superior position. So that September afternoon when he was about to pass his sentence on me after the jury dutifully found me guilty for my nonviolent protest at the Republican National Convention, he looked down on me as he followed exactly what the prosecutor had recommended: “The City of St. Paul sees no purpose served at this time in jailing [the defendant]… The State is asking the Court to stay the imposition of sentence of this misdemeanor conviction for the period of one year – on the condition that [the defendant] pay a $100. fine, plus the other fees and assessments required by law [$81], and the Court orders [the defendant] to have no same or similar violations of the law in the next year.” Judge Wilson added “and remain law-abiding in all respects” as he issued his edict from on high.
I had tried to be law-abiding – recognizing that there is a hierarchy of laws and in my estimation, International Law and Treaties need to be weighed in the balance when one is considering how to behave in a responsible manner as a citizen as well as as a follower of Jesus of Nazareth - a responsibility I see as more important than even my civic responsibility. There was an illegal war in progress then – and two wars continue today. I continue to remain willing to accept the consequences when those loyalties conflict.
But my question is: does “no same or similar” also apply to our Presidents who continue to claim one can succeed with military solutions to “counterinsurgency” situations – despite all evidence to the contrary? Vietnam was our “Vietnam”; Afghanistan was the Soviet Union’s “Vietnam”. “Vietnam” has become a pejorative term which is short-hand for an unwinnable situation. Historians tell us you can’t “win hearts and minds” with military firepower. But first Bush, now Obama, seem determined to commit a “same or similar” act. I would call it a mistake if it were just an innocent error of judgment. But when the President surrounds himself with “the best and the brightest” who continue to get foreign policy wrong, one has to wonder if it is not deliberate. I would like to believe President Obama is sincere when he tells the troops he addresses that he doesn’t want to send them into “harm’s way” unless it is “absolutely necessary”. I try to believe him but I have my doubts. Is it “absolutely necessary” for us to continue the economically and environmentally unsustainable “American style of life”?
So why do I continue to do “the same or similar” in defiance of the Judge or even in the face of disappointment from the apparent lack of change in our national policy? Is it worth risking three months in jail or prison just to participate in a symbolic action that few are likely to see and the media will likely dismiss as unworthy of notice on the evening news? [When the Judge “stayed” sentencing back in September, it means if I violate the “no same or similar” edict, I am liable for the maximum sentence on the first offense (trespass at the RNC), up to 3 months – plus any additional sentence the current Judge might impose when arrested.]
Actually, the real question is: what do I risk by not acting? What part of my life-spirit shrinks when I respond out of fear of the consequences rather than following the clarity of conscience? Is taking a risk for peace and justice only worthwhile when one has a larger audience or a greater likelihood of “success”? The action in question is being part of “die in” this week in front of an Arms Bazaar in Omaha – the shopping mall where the merchants of death hawk their latest ways to facilitate killing to the world’s most-addicted military.
Besides, risking arrest gives me the potential opportunity to spend several days with the legendary Franciscan activist, Father Louie Vitale who has been arrested more than 200 times in his quest for peace with justice; and Frank Cordaro as well, the ex-priest and Catholic Worker activist from Des Moines. Others pay good money to hear these seasoned activists tell inspiring stories at conferences; going to jail with them is like auditing their courses in nonviolent action at no tuition – and you get room and board to boot! Granted, one never knows what to expect when locked up by the authorities. Sometimes the noise and commotion allows little energy for those discussions. Sometimes “co-defendants” are deliberately split up from one another in different parts of the jail. But knowing that for even a short time one was not complicit with the Empire can embolden one to continue on the journey toward peace.
Remarks for MN Fellowship Of Reconciliation Peacemaker of the Year Award – Steve Clemens. Nov. 1, 2009
Peacemaking is a journey, not a point of arrival. I never thought my up bringing would lead me to this event. My Evangelical background dismissed anything labeled “inter-faith” - and its stark “saved/lost” dichotomy almost relished the idea of leaving some behind. My “peacemaking” got off to a rocky start in the late 1960s and was characterized more with disgust and hatred of President Nixon rather than out of compassion for the Vietnamese civilians or US soldiers killed in that war.
When I chose to become a conscientious objector during the height of the Vietnam War in 1968 in response to the military draft, it was a purely personal decision. I couldn’t reconcile my desire to follow a Jesus who called me to “love my enemies” with the uniform and rifle I was issued for my compulsory Army ROTC class and drill at my college.
Becoming a conscientious objector was a personal decision initially and it didn’t impact my politics or career choices. It was only during the following summer of 1969, after having my life threatened by a Black Panther on the streets of Philadelphia and then watching the landing on the moon in a tenement slum apartment as a rat ran across the room that it began to dawn on me that my conscientious objection had to become a commitment to peacemaking - to become “political” in the sense that it had to go beyond whether I was willing to take up a gun or not but had to impact all the choices I made.
What was personal had to become social and political. It was a Catholic priest from the Maryknoll seminary down the road from my Wheaton College campus that helped me move from a personal stand to public protest.
It was another Catholic, a former nun, Elizabeth Macalister and her husband, Phil Berrigan, who a few years later helped me transition from public protest to nonviolent direct action and civil disobedience. It was a long journey from a childhood where I was coached to avoid Catholics because they weren’t “born-again Christians” like my family was - to being inspired by their commitment to a God of Peace.
The genius of the Fellowship of Reconciliation (FOR) is that it draws from the strength and insight of many streams of religious thought and practice, refusing to attempt to contain “truth” within the confines of one religion or set of doctrinal beliefs.
I had first heard of the FOR during my years of street protest against the Vietnam War and my attempts as a draft counselor where groups with acronyms like the FOR and CCCO (The Central Committee for Conscientious Objectors) and NISBCO (National Inter-religious Service Board for Conscientious Objectors) became helpful sources of information for young men wrestling with issues of war and peace and the draft.
But the power and witness of FOR really hit home when I moved to south Georgia and met an 80-year old man at Koinonia in 1975. Will Wittkamper was raised as a member of the Disciples of Christ or Christian Church. He didn’t know what a pacifist was, he just knew that the Jesus he followed wouldn’t allow him to carry a gun. When he was drafted for World War I, he refused to take up a gun and was thrown into prison for his conscience. He told me how a few years later he wept when he heard of a group of others who were also morally opposed to war and how eagerly he signed on to become one of the early members of the FOR. Christine and I named our first son, Micah Will, after this man of conscience and we hope our lives, too, will serve to inspire others like Will did for us.
One other FOR experience had a major effect on my own journey: I attended a national FOR Conference in Berea, KY in 1980 where I encountered presentations from Dan Berrigan and the radical Southern Baptist preacher, Will Campbell. Will insisted that Jesus had very few direct commands to his followers – but one of them was that we must visit those in prison. As a result, and with the mentoring of Murphy Davis of The Open Door Community in Atlanta, I ended up visiting a man on Death Row in Georgia over the next 10 years. Meeting Bob Redd, and eventually trusting him to hold and play with my infant sons during our prison visits taught me a lot about peacemaking and the need for justice to be tempered with mercy.
I’d like to share a few things I’ve learned on this journey.
· Peacemaking, while it often appears to be a solitary witness, is more often the result of partnerships and community. I’ve been blessed with a life-partner and spouse who has supported and encouraged me even though our styles are quite different! Thank you, Christine. And, being surrounded by a community which shares my convictions has been an essential part of my peacemaking efforts - first at Koinonia Partners where I lived from 1975 to 1990, and now The Community of St. Martin since then. This award must be shared with them – as well as the “communities” of Pax Christi, Alliant ACTION, WAMM, IARP, SOA Watch, MN Peace Team, Vets for Peace and many other groups.
· There is always new learning and deeper commitments to explore: After my first arrest in 1975 at the White House during the final days of the Vietnam War, I was shocked to learn that a few of my fellow arrestees remained in jail rather than accept “release on their own recognizance” -they had understood the “White Privilege” implicit in that offer. Constantly I’ve been challenged with the question, “How deep do you want to go?” and as I witness the courage and conviction which leads others to take their first step or go deeper I am humbled and grateful for their commitments. Some have paid a heavy price for their risks for peace.
· I’ve learned when I allow myself to act on my faith rather than my fears, my faith is strengthened and new possibilities emerge. When I chose to climb the fence outside the Pantex Nuclear Weapons Assembly Plant in 1981, or sit on the train tracks in southern Georgia to block the shipment of nuclear warheads to the Trident submarines in 1985, or traveled to Iraq with war threatening with the Iraq Peace Team, I had to wrestle with the possibility of my own death before acting. It has been my experience that acting after considering the potential costs has been a very liberating and empowering thing.
Clarence Jordan, one of the founders of the Koinonia Community, used to say that “Fear is the polio of the soul which keeps us from walking by faith”. He went on to say that faith is not believing in spite of the evidence but rather acting in scorn of the consequences.
· I’ve learned that time spent in jail or prison need not be “unproductive”. My experience of reading the scriptures while in prison gives one a very different perspective than reading it on the “outside”. It is amazing how much of the Christian and Jewish scriptures were written either in exile, prison, or on the run from “the authorities”, political or religious. Prison time forces you to draw on your inner resources.
Like Dr. Martin Luther King, I’ve found writing from prison lends one a different sense of credibility or authority than when on the “outside”. I’ve been inspired by King, Daniel Berrigan, Kathy Kelly, Rita Steinhagen and others who have written about their experiences while “guests of the state”.
More importantly, as a white male, time incarcerated can help one experience powerlessness and not being in “control”. This is a critical learning for anyone striving to be a peacemaker. Jail is not the only place to learn this but it is hard to escape learning it when one is imprisoned.
· I’ve also learned that I need “decompression” time after time in jail or prison –almost equal to the same amount of time one has spent locked-up. Time for reflection and renewal is often neglected in the life of activists and I’ve found it essential if I am to be equipped for “the long haul”. Reading and writing are helpful disciplines for me.
· I’ve struggled over the years with the continuum within peacemaking efforts between faithfulness and effectiveness. There are many different styles of peacemaking and we need to appreciate all of them rather than giving special recognition to one style (like civil disobedience) over the others. Some of us would rather risk going to jail than to sit through interminable strategy/planning meetings! All our gifts will need to be implemented for peace to prevail.
I ask myself as bad knees or an aching back make it more difficult for me to participate in a “die-in” or to get into the top bunk in my prison cell: Am I getting too old for this? I am so grateful to have so many “fellow travelers” to accompany me – many of whom are here today. I am learning the importance of mentors and mentoring the next generation. I’ve been blessed to have learned from Phil and Liz and others from the Catholic Worker movement, and from Ladon Sheats and Kathy Jennings, two peacemakers almost no one in this room has ever heard of. Now I find myself joining “young people” in protest at immigration deportation centers and foreclosed houses, meeting with SDS activists from Macalester, and talking with RNC arrestees – hopefully sharing some of what I’ve learned in my own journey.
I am humbled by your recognition and accept this award on behalf of the communities with which I act and receive my support. Thanks to all of you for the important peacemaking work you have done and continue to do. Hopefully our paths will continue to cross as we encourage, challenge, and nurture one another as we together strive to make this a world worthy of the next generations. Thank you.