Website developed by Cal Donnellycolt • firstname.lastname@example.org • 2004
Legal Issues & Risking Arrest
Legal System Flowchart
Serving Time in Jail
The decisions that we make are political, not legal. The reaction of the government to what we are doing, to what we stand for, will also be political. We can have quite an impact on what happens to us in jail, in court and during processing, if we are prepared. It can be as important a part of our nonviolent opposition as anything that comes before the arrest.
In a large demonstration, the police may separate us from each other, breaking up affinity groups and possibly isolating individuals. In order to maintain our spirits and effectiveness, we must develop an ability to deal with the legal system, while trusting in the solidarity of other demonstrators. Solidarity is, in reality, more a state of mind that unites us through a long struggle than a specific course of action that everyone follows. Solidarity does not demand that everyone make the same choice in every situation. It is an internal force within each of us and among us as a group. It is our commitment to one another and to our common cause; it is our dedication to support one another and to pursue our common goals at all times, in every situation, to the best of our ability. Solidarity cannot be broken by courts, jails or other external forces. If we hold fast to it, it is ours.
Our approach to the legal system is up to us. We retain as much power as we refuse to relinquish to the government - city, state or federal.
The criminal "justice" system functions to alienate and isolate the accused individual, to destroy one's power and purposefulness and to weave a web of confusion and mystification around any legal proceedings. If we are well prepared for our contact with this system, we can limit the effect it has upon us, both personally and politically. It is extremely important that we be firmly rooted in our own spirit and purposes, our commitment to one another and history and tradition of social struggle of which we are a part. We should try to maintain our nonviolent attitude of honesty and directness while dealing with law enforcement officers and the courts.
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Legal System Flowchart
|STEPS||DESCRIPTION OF WHAT HAPPENS||CHOICES|
|Warning or Command||Officer may give warning to or leave or command to stop doing something.||- Stay or leave -Don't do or stop doing actions.|
|Arrest||Officer physically grabs you, takes you to police wagon or squad car. May say you are under arrest. Pat search, sometimes handcuffs. Taken to holding area.||- Walk
- Go limp
- Flee (if left unguarded)
|Police question arrestees concerning information for arrest reports (name/address/occupation/social security number/ financial); may try to get additional information for intelligence.
Possible photographing/fingerprinting/property and clothes may be taken.
|-Decide what, if any, information to give police; e.g. false, correct or no name. - Refuse to post bond -Demand no cash bonds or equal bonds for all (bail & jail solidarity)|
|Charging||Prosecutor decides what charges to pursue|
|First Court Date||Appear in court alone, or most likely with other arrestees Attempt to dispose of case by plea or trial, or continue case for bench or jury trial or plea negotiations later. Prosecutor not always ready for trial.||-Lawyers or Pro Se
- Bench Trial
- Demand jury trial
|Trial||Trials can vary from: - a few minute bench trial with or without a lawyer - to a full jury trial with expert witnesses lasting a week or more,
- or any place in. between.
|- Defense based on noncommission of acts and/or necessity of actions - Small or large resources of time and money|
|Verdict||judge or jury decides
- Acquittal (not guilty)
|Sentencing||Hearing on appropriate sentence||Can testify why actions were justified, necessary, etc., and your background. Sentencing statement is powerful opportunity to bring out political and moral issues, show non-recalcitrance. Remain silent|
Nonviolent action draws its strength from open confrontation and noncooperation, not from evasion or subterfuge. Bail solidarity, noncooperation and other forms of resistance can be used to reaffirm our position that we are not criminals and that we are taking positive steps towards freeing the world from oppression.
Discuss the issues raised in this legal section with your affinity' group - particularly noncooperation and your attitude toward trials. Think out various hypothetical situations and try to understand how you will respond to these situations.
Some demonstrators refuse to cooperate partially or wholly with court procedures; they refuse to enter a plea, to retain or accept a lawyer, to stand up in court, to speak to the judge as a symbol of court authority (but rather speak to him or her as a fellow human being), to take the stand or question witnesses. They may make a speech to those assembled in the courtroom or simply lie or sit on the floor if they are carried in, or attempt to leave if not forcibly restrained. The penalties for such noncooperation can be severe, because many judges take such action to be a personal affront as well as an insult to the court. Some judges, on the other hand, overlook such conduct, or attempt to communicate with the demonstrators.
Physical noncooperation may be sustained through the booking process and through court appearances; it may continue through the entire time of one's detention. This might involve a refusal to walk, to eat, to clean oneself and one's surroundings. It may even lead prison officials to force-feed and diaper the inmate.
Another form of noncooperation is fasting - taking no food and no liquid except water, or perhaps fruit juice. While abstaining from food can be uncomfortable and eventually risky, abstaining from all food and liquid can be extremely dangerous almost immediately. Five or six days is probably the longest a human can go without liquid before incurring brain damage and serious dehydration. Usually authorities watch persons who are "water fasting" closely and take steps to hospitalize them before serious consequences occur, but no demonstrator can ever count on such attention and should therefore be prepared to give up the fast or perhaps be allowed to die, as did several Irish freedom fighters during the H-Block hunger strike in 1981.
There are other forms noncooperation may take and other reasons for it to occur. The refusal to give one's name undoubtedly springs from a desire to resist and confound a system that assigns criminal records to people, that categorizes and spies upon them and that punishes organizers and repeat offenders more strenuously. It relays a message that none of us should be singled out: we'll be doing this again and again.
Many nonviolent activists, however, acting with the openness and confidence that characterizes and strengthens nonviolent action, do not choose to hide their identities. They may still noncooperate, however, by refusing to reveal an address, or by refusing to promise to return for trial, increasing the burden on the courts to quickly deal with the demonstrators and enhancing their solidarity and strength as people working together, filling the jails.
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"When arrested while making a statement through an act of civil disobedience, I prefer to go pro se (represent myself) because of the control it gives me in the courtroom. It means that I am a woman in charge of my life and responsible for my decisions and behavior, and that I am prepared for the results of my actions. Using a lawyer means that I must sit quietly and humbly through specious legal arrangements over my behavior and the proper punishment for it. It means that I am like a child with parents arguing about my naughtiness and what to do about it so that I will "learn a lesson" or "will have learned a lesson." I should add, however, that having a lawyer around to advise and explain potentially complicated issues is helpful. "
--Catherine de Laubenfels,
arrested at Women's Pentagon Action 1980, 1981
The Constitution gives you the right to represent yourself. The right is founded in the understanding that someone else may not say quite what you want said in your behalf, or may not say it in the way you want it said. You therefore cannot be forced to let someone speak for you.
Trials and hearings resulting from civil disobedience are particularly suited to unearthing the reasons behind, and the possibilities for, selfrepresentation. Perhaps the CDer can better explain his or her own motivation. Why water down a deeply political and personal act of civil disobedience with a lot of legalistic jargon? Why let the application of the energizing ideas contained in the philosophy of non-violent civil disobedience stop with the arrests? If you choose to participate in action, it will be a result of much thought and consideration. Why not continue to involve yourself fully all the way through the trial? A lawyer must adhere to the legal restrictions of the courtroom and translate everything into the proper categories. You as a pro se litigant have much greater leeway. If you don't understand something don't hesitate to ask questions about what is happening during the trial.
Representation by an attorney may be the best route, if you desire an acquittal at any cost. In a group trial, the option of having some but not all defendants represented by counsel is often available. You should speak to people who have represented themselves. The most important thing is to remember that you have choices. The system teaches us to think that there is only one way of doing anything, but because we question that we choose to do civil disobedience in the first place.
In November of 1980, as part of the first Women's Pentagon Action, one woman chose to sing her "defense. " She sang Malvina Reynolds' "It Isn't Nice to Block the Doorway." She was found guilty.
It Isn't Nice
It isn't nice to carry banners or to sleep in on the floor. Or to shout or cry of freedom At the hotel and the store.
A refusal to cooperate with the imprisonment of oneself o- others is sensible and natural to many of us. The deliberate and punitive denial of freedom that jail consists of is abhorrent to all of us. Many of us oppose prisons altogether, viewing the inequalities and injustices of our society as its culprits, not the victims who end up rotting in its jails.
For many who join in civil disobedience actions, noncooperation with the criminal justice system is important because it impedes their removal and prolongs their ability to accomplish their goals of stopping the violent business-as-usual of their targets. By becoming great burdens to the courts and jails they demonstrate how difficult and costly it is for these institutions to protect the "status quo" and hope to convince others that this price is too high.
One way of refusing to participate in arrest and detention is by going limp. A decision to go limp is a decision to approach the arrest situation with peaceful resistance and may involve discomfort and strained communication between the demonstrator and arresting officer, largely because one of the two people is being dragged along the ground, and one is struggling to carry the other. Although very common, even going limp is not an easy way to noncooperate: we are forcing the police to either join us or carry us away. We frequently find ourselves being carried or dragged by an angry police officer, unsympathetic to our claims that we are acting as much on her or his behalf as on our own. This is an uncomfortable dilemma which runs throughout every act of noncooperation and which can only be eased, if at all, by one's ability to explain one's actions with sensitivity and sincerity.
"By our refusal to cooperate, we keep reminding them of our dissent, refusing to allow them the godlike sense that their will alone exists." - Barbara Deming
Many activists also choose to resist the codification of people by social security numbers . The questions that are asked about background and employment are means to facilitate both the system's processing of individuals and its preparation of files about them. The very fact that demonstrators may be privileged enough to have jobs and perhaps be ushered in and out of jails more politely and efficiently than other "criminals" is something that some are unwilling to take advantage of.
Noncooperation is difficult. It is rewarding, powerful and inspiring, but it can be frustrating, time consuming, and even painful. Noncooperators must be careful not to pressure others into joining them. Anyone who tries to noncooperate must feel flexible enough to give it up if it becomes too much to handle.
It might be best to try out various levels and different approaches to noncooperation, as they feel appropriate. Noncooperation can be very powerful as a response to unjust demands by guards. If feels particularly natural and effective at such times.
It is likely that noncooperators will be subjected to intimidation and legal threats. For this reason, it is important that demonstrators prepare themselves for this ahead of time, rather than planning to change their minds about noncooperation under duress. Successful intimidation from the guards will only encourage them to treat the remaining noncooperators more harshly.
On the other hand, cooperation with the indignity and injustice of jail is no easier. The paths we choose may vary. The decision to cooperate or noncooperate with part or all of the arrest procedure is a personal and political one. For some of us noncooperation is one way we will continue the struggle inside prison walls.
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Jail solidarity may be defined as complete unity of purpose of those incarcerated or imprisoned. The ultimate objective of that unity is for everyone committing the same act to be treated equally and fairly in jail and in sentencing. Refusing citations, bail, fines, community service or probation keeps us together as a community with the potential for collective bargaining to meet that objective.
For jail solidarity to be most effective, the issues surrounding it must be addressed and resolved to the greatest extent possible before reaching jail. jail authorities are not going to patiently wait for us to reach consensus on solidarity agreements before they start employing "divide and conquer" tactics to weaken our bargaining power.
One divisive tactic used by the prison/legal system is different treatment for certain individuals or groups. These people risking harsher testament usually include noncooperators, repeat offenders, known organizers, people of color, lesbians and gay men. Discussions of solidarity should always include the issue of how to give these people the extra protection they need.
Coming to agreements about solidarity goals and tactics is a powerful but difficult process. To reach true solidarity with the greatest number of participants, people must have enough information and time to make wise decisions. Solidarity tactics that are employed successfully are empowering. Ill-considered, unfocused uses of solidarity tactics are less successful and drain our energies.
Some of the issues that cause the most controversy around solidarity include interpretation of the nonviolence guidelines, and under what circumstances, if any, we will keep solidarity with those who have previous records, are on probation or have not followed the nonviolence guidelines for that action.
People's motivations for participating in CD will affect their attitudes toward the police and jail guards. Some people are motivated to CD as a protest against the multiple structures in society which work together to create a weapons industry. The prison/judicial system is seen as one of these structures.
The effect of this political viewpoint on behavior in jail can be very dramatic. Often people refuse to cooperate with the authorities at all. Some ways they do this are by going limp during arrest, not abiding by prison regulations, and refusing to participate in arraignment. Some of these acts serve personal moral goals; others are initiated as levers to make the legal system mete out equal and fair sentences to all.
Another group may reflect a different set of motivations and approaches. For some people for example, their fundamental reason for CD stems from an awareness of the destructive power of nuclear weaponry. Their fear and outrage over these weapons may be their only motivation to do civil disobedience. Often these people will stress more of the need to communicate with the human beings behind the helmets, uniforms and roles. They will talk to the police, perhaps befriend the prison guards, and try to use persuasion and dialogue to raise questions about these roles.
The differences between these two approaches will frequently lead to conflict. The stress of the jail experience tends to intensify conflict but by discussing differences beforehand their effect on jail solidarity can be minimized. Conflicts that arise in jail must be acknowledged and dealt with at the time or they may become divisive. Conflict is an expression of opposing viewpoints and should not be confused with violence.
Often it is not possible for everyone to agree to stay in jail for solidarity purposes. Sometimes there are people who question the need to struggle inside the jails when the action's primary goal is something else. Some people, because of outside responsibilities, cannot afford the time jail solidarity may demand. Others find jail conditions physically or emotionally intolerable. And still others take the political stand that we're more effective back on the streets encouraging other people to take a stand. Whatever the reason,, for not participating in jail solidarity, individuals should make this in formation known beforehand since it may affect decisions of the group Those who must leave jail are no betraying the group - there are many ways they can continue sup porting those inside: by speaking t( the media, to the movement and t the public about conditions inside by fulfilling responsibilities for those inside, by carrying messages t, family, friends, and employers.
Jail solidarity must never become coercive. In jail, solidarity is our strength and the strength of our solidarity comes from the free agreement of all who take part in it.
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Serving Time in Jail
Any act of civil disobedience implies the willingness to risk jail for one's convictions. For those who land there as a consequence of conscious decisions, jail can present an opportunity for testing, and strengthening spiritual and -political convictions. Though it should not be courted imprudently, it is something that must be faced and can certainly be endured. Those arrested as a result of civil disobedience have the advantage over most prisoners of knowing that they are there having made a conscious choice. That knowledge can make the difference between what is otherwise a thoroughly miserable situation and a larger possibility for reflection and education. What is more, it can provide you, when the time comes, with a reserve of strength of which you were previously unaware.
Being in jail can give a rounded picture of the militaristic, oppressive society against which we struggle in our nonviolent resistance. It is an education in the underside of justice. In state prisons throughout the country most of the people who are locked up are people of color. The vast majority are poor, in jail for poverty-related crimes or awaiting (and waiting and waiting) trial, because they cannot afford bail.
Jail is a lonely place. It aims to weaken solidarity, to try to isolate people from one another and reduce one's concentration to dealing with the demands of authority and of one's survival. However, no one in jail for affirming her or his conscience is ever alone. Remember that and you should have no trouble getting by.
What exactly can you expect? Jails differ as to particular conditions, regulations and privileges allowed. Yet, jails are enough alike that it is possible to make some rough generalizations. Entering prison is like going into another culture - new behavior norms' language, symbols, new reality. Go slow, and use common sense. To quote someone who served a year in Rhode Island's Adult Correctional Institute, "It took me six months to figure out what was really going on in prison. And I am not such a slow learner. So, be humble and be quiet, and listen and learn. "
You can expect overcrowding, which means frustrating and irritating levels of noise and distraction, little personal space or privacy' and scant regard for cleanliness. You must exercise patience, consideration and discipline to preserve peace and sanity. It will be difficult to sleep, there will be blaring radios and TV's, slamming bars, and loud arguments, which may make you irritable and short-tempered. Learn to watch for this in others and try to respect their need for space. Time will be distorted: Days will slip by but each hour will seem like an eternity. Food will be starchy and dull (don't expect vegetarian menus). You will learn to wait, for a phone call, a shower, a meal, the answer to a question, the time of day.
You may be issued a uniform. In that case, your clothes will be confiscated along with all your other belongings. You can expect a complete strip search including rectal and vaginal examination for contraband, the first of many other casual assaults on your dignity.
The guards have a great deal of power and they are aware of this. And because they are human beings, this knowledge tends to have a bad effect on them. Long exposure to jail, whether as a prisoner or a guard, tends to have a corrosive effect on one's confidence in human nature and goodness, and the guards are victims of this as well. They expect the worst out of people, and, not surprisingly, they are not often disappointed. Their principal concern is to preserve order, which demands an atmosphere of unquestioning respect (fear) for authority. This is their contribution to the process of "rehabilitation," supplanting personal responsibility with thoughtless obedience and submission. You should try not to indulge them in their exalted self-image. Keep expecting that they should act with respect and compassion and you may be surprised by the results. Perhaps you may surprise them into remembering that they and the prisoners in their charge share a common humanity. At least you may establish a basis for dialogue. But at the same time that you recall the humanity of your guards don't forget that, in the end, you and they have different jobs to perform. Let them be responsible for keeping order. You are responsible for keeping your conscience.
Just because your body is detained doesn't mean you've got to turn in your conscience and convictions along with your other belongings. Whether in jail or on the "outside," the freedom we enjoy is always the freedom we claim for ourselves. Being under lock and key does not deprive you of your essential freedom as long as you continue to insist on your power to say "yes" or "no" within the limits of whatever situation you find yourself. It was your commitment to make decisions for yourself about what you should and shouldn't do that landed you in jail in the first place, and it remains a good principle to live by, even in jail.
The following is a list of observations and suggestions from people who have served time:
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