Punishment To Fit the Crime?

Punishment To Fit The Crime? By Steve Clemens. October 2010

In the past two years, I have been given the “opportunity” to do court-ordered “Community Service”. Often the sentence is to pay a monetary fine (plus “court costs”) and then the Judge allows a substitution of community service to be performed in lieu of paying the fine. Historically, community service was a way for poor people to be “punished” for their conviction in court when they were unable to pay the fine. Today it is sometimes used to assuage the “convictions” of protestors who object to paying money to the government (the fine) as a “tax” on their conscience.

So, how does a Judge determine the amount of community service to equal the fine – or, how much community service should be required to heal the “breach of the peace” which led to the guilty verdict in the courtroom?

Years past my position was clear: don’t pay the fine or agree to community service when convicted of the “offense” of acting on your conscience. Most of my convictions were resulting from “trespass” charges – usually on the property of an activity which should not exist: the plant assembling nuclear bombs, a plant building first-strike submarines, a military base training soldiers in techniques designed to sew terror in the hearts and minds of Latin Americans. The list goes on and on.

Sometimes the arrest comes at a public place in protest of a specific activity or policy advocated by the resident office holder: at the White House against the current war or practice of torture, at the Capitol in protest of taking from the poor to give to the military, at the Immigration Office to protest deportations. Yet other morally legitimate things also happen at those sites: new immigrants are welcomed as citizens, policies are passed to help protect the environment, and decisions are made to end discrimination against marginalized groups and individuals.

One of the things I’ve learned from U.S. history is that a lot of the significant change (for the better) that we’ve seen has been principally brought about politically because of citizens taking to the streets or lunch counters in protest, risking arrest and imprisonment. Women’s suffrage, the 5-day workweek, civil rights, human rights, shortening wars of aggression, even preventing the development or deployment of some weapon systems has been facilitated by acts of conscience and protest, mostly through nonviolent action.

Under our present “justice” system, we’ve evolved theories which primarily see the State (or city or federal government) as the “victim” of the “crime” for which we are arrested. This often leads to the notion in a trespass case that the “owner” of the property (often a war merchant or an elected official who supports the wars or other evil policies) is at most peripheral to the case to the Judge but absolutely central for the defendant.

Therefore Judges often choose not to listen to arguments about intent or motive from the defendant because to do so is too threatening to the established order. The Courts mostly see their role in protecting the establishment, the status quo – that is from where their power emanates. Not many judges are willing to face the fact that the Nuremberg Tribunals also convicted German judges for their roles in the perversion of justice during the reign of the Nazi Party.

At what point do judges ever look back on their own history to see what should have been done differently? Are there any judges alive today who now wish they’d handled Martin Luther King differently when he stood before them in the dock? Plans are underway to erect a monument to him on the Washington Mall yet there are still probably a few of the lifetime-appointed Federal Judges who still defend sending him to jail.

When we finally (and we will) abolish nuclear weapons and give human rights to sexual minorities, society will have a different take on the Berrigan brothers and GLBT/queer activists. But until that day, principled protesters will be cuffed and shackled and hauled before judges for their civil disobedience. Sometimes the result will be jail or prison; more often it will be a fine, probation, and possibly “community service”. What community service is appropriate when the charge is pointing out that the emperor has no clothes?

After blocking the ICE Center to prevent undocumented immigrants from being deported, I was assigned work picking up trash and mowing grass at public boat landings in the wealthy suburbs. The only connection to the “crime committed” is that often those tasks are done by low-wage workers, many of who are new arrivals to this country or those who have been marginalized for decades if not centuries.

The protest against the wars during the Republican National Convention resulted in 24 hours of community service – this time of my own choosing, as long as it was in Ramsey County. I counted my many hours transporting Iraqi visitors around the Twin Cities for that sentence. At least there was a connection for me between opposition to the war and working to heal some of the wounds by acts of reconciliation with those who may have been our “enemy”.

Arrested at the headquarters to the local war profiteer Alliant Techsystems last fall, my judge was very creative: he told the four defendants about his sister who had polio as a child and how local Shriners and Children’s Hospitals gave her great care. He told us after hearing our testimony that we cared deeply for victims of indiscriminate weapons, especially children, so he recommended we do our community service at one of those hospitals – which we did with great joy. This hospital is now providing free treatment to a young Iraqi boy who lost his leg during the war.

Most recently, my judge in Kansas City allowed me to perform my 10 hours of community service (for protesting the use of city funding to build a nuclear weapons plant) at a place of my choosing, adding, and “I hope at least some of it will be here in our city”. I chose to work with a Catholic Worker community that lives, works, and serves with the homeless of Kansas City – the population that should have received the tax monies that were earmarked for blighted neighborhoods but ironically spent on a weapons plant that could wreak blight on the entire planet.

While I like the sense of symmetry that my last three stints of community service engendered, whenever possible I’d prefer a jail sentence over a fine or “sentenced-to-service”. There is something powerfully symbolic about being in jail when one’s society and government are out of whack. Thoreau’s challenge to his friend Emerson – “Why aren’t you in here with me?” – is a testament of marching to the beat of a different drummer. Martin’s call for us to become “drum majors for justice” continues to beckon us to risk jail or community service, even when others say it is “unwise or untimely” like his critics claimed when he was in the Birmingham Jail.

I don’t expect to receive a posthumous Monument on the Capitol Mall – but I do want to be part of those struggling to become the “beloved community” that Martin dreamed of and embodied – that would be a true “community service”!