Protest Is Different

Abstract

Acts of civil disobedience, long used to provoke social change, ignite a tense clash between foundational rule of law principles and deep-seated beliefs in the right to air grievances. This article explores these tensions and, relying upon evolving concepts of capital jurisprudence, argues in favor of a new framework for evaluating the criminal culpability of civilly disobedient protesters. United States Supreme Court jurisprudence has repeatedly recognized that capital cases are distinct from non-capital proceedings. One rationale underlying the acknowledgement that “death is different” is that the complexity of the moral determination inherent in a sentence of death requires a judgment of community condemnation. This assessment of condemnation must be made individually and by a jury; it cannot be prescribed by rule of law or imposed by a judge. Though once a jurisprudential silo, the analytical influence of death penalty law is expanding and, while the difference between a sentence of death and one of imprisonment is unmistakable, distinctions between and among criminal offenses do not begin and end with the punishment. Acts of civil disobedience, though criminal, are unlike ordinary criminal acts. The competing values underlying acts of civil disobedience are similar in depth and complexity to the values underlying the individualization and community conscience requirements in capital proceedings. This article proposes that in criminal prosecutions of protesters, society, represented by the jury, should individually evaluate whether an act of civil disobedience offends collective values sufficiently to warrant the community condemnation implicit in a criminal conviction.