I’m writing to wish you Happy Holidays now, as I’m going to jail for a few days tomorrow. (If you aren’t apprised of the background underlying my criminal conviction, see here.)
To be clear, I am guilty. I saw our version of American Justice, and I’m here to tell you it is anything but just.
For my actions at a protest on April 29, 2015 in Denver, I was charged with three misdemeanors: Failure to obey, obstruction of a street/passage, and interfering with a police officer. The latter charge was dropped before trial, as I had video that clearly showed it was unfounded. The former two were tried in front of a jury of six and I was found guilty of obstructing a street/passage and simultaneously not guilty of failing to obey police orders to stay out of that same street/passage.
You read that right.
There are different potential reasons for this seemingly contradictory verdict. The failure to obey charge offered an affirmative defense. If I failed to obey the order, but doing so didn’t interfere with the officer’s ability to do whatever he was doing, I wasn’t guilty. So the prosecution had to prove I both failed to obey the order and that when I did so I interfered with the officer’s ability to do his job. The obstruction charge offered no such affirmative defense and the law is targeted at protestors. So if your individual actions or the actions of a group you’re a part of obstruct a roadway, you can be found guilty of the charge. So my participation in the protest on April 29, 2015 that took to the streets in an act of symbolic civil disobedience, albeit for less than a few minutes, qualified as a technical violation of the law.
Selecting the jury during voir dire the prosecutor asked potential jurors a telling question: “Even if you feel the law is silly, could you still convict Mr. Benn?” She gave an example. “If the law says you can’t wear a red shirt on a Friday, and I prove Mr. Benn did, would you be able to find him guilty?”
Only one potential juror answered this correctly. “No,” adding sarcastically, “I really like red shirts.”
This question and how we answer it is an important thing for those among us who care about living in a free society to ruminate on. Authoritarians enforce arbitrary laws and punish those who defy them. Not people who believe in freedom. This is why education about jury nullification is so important. Put simply, good jurors nullify bad laws.
In the end, the prosecutor got the right set of jurors—the one who answered correctly was dismissed—and the ones who remained found me guilty of wearing the proverbial red shirt.
The judge sentenced me to five days in jail, which I’ll begin tomorrow. Hopefully I’ll get some time served and/or good behavior and be out by Christmas—yes, this Jew celebrates Christmas—and to see my grandparents who are coming to town from Philly to meet my six week old baby. But I’m not counting on it.
I know some of you who watched this process feel like an injustice has been done. I’m also sure a few of you feel like I’m getting exactly what I deserve. And by American standards, you’re absolutely right.
That’s part of the problem.
American Justice, with all its flaws, is rarely received by those who walk through our criminal injustice system. Freddie Gray, whose killing was part of what brought me into the streets on April 29, 2015, was slain while handcuffed in the back of a police van after allegedly committing a minor offense. He never had the chance to see a trial; and he likely never would have. The vast majority of people charged with a crime take a plea long before a jury trial. The odds are so severely stacked against you when you walk into a courtroom as a criminal defendant that such a choice is perfectly rational. But it’s not (small “j”) justice.
On the other hand, I had a good attorney willing to work my case pro-bono—not an underfunded, overworked, and potentially incompetent public defender. I had the right clothes to wear to look professional. I had a reliable vehicle to get to-and-from a long series of court dates over eight months. I didn’t have a boss I had to request give me time off to go to each appearance. I had supporters in the courtroom at a number of appearances, including a relatively large group for my trial and sentencing. I’m white, male, cis-hetero, educated, and from an upper middle class background. My point is this, I had every privilege possible as I walked through our system of American Justice. And, while I’m admittedly biased, I don’t believe anything that happened to me from my arrest, to my trial, to my sentencing has much to do with justice. Five days in jail for the equivalent of a traffic offense.
That disconnect speaks volumes. And I hope those of you who believe justice exists in our American Justice system in any meaningful manner beyond its appropriation of the term, will use my experience as a chance to consider that further.
I had a choice when I stepped into that roadway. I knew it was illegal. I believed then and still believe now that such acts of symbolic disobedience are vital in the fight for social change and revolution. I’m a criminal. Will you criminalize me? If I die in custody will media use my mugshot?
Meanwhile, many people are born into situations that offer little choice—not just if they’ll engage in activities society deems criminal, but who will be criminalized regardless due to the color of their skin, their class background, their drug or employment of choice, and more. This is who we look to when they face our criminal justice system and dismiss via dehumanizing and racialized epithets and reductive clichés. They’re ‘thugs,’ ‘whores,’ and ‘junkies’ who get what they deserve. ‘They did the crime, they should do the time.’ The truth is always colored with shades of gray, though. If we could just look past dehumanizing epithets and superficial phrases that promote the myth we live in a just world, then we could start to work together toward the ideal of a truly just world. We could all step back, look a little deeper, and accept that there is more to everyone’s story. We could live in the gray and acknowledge each others’ different shades.
My criminal proceedings weren’t an anomaly because they don’t qualify as American Justice, but because they do. Most see no such thing. And after having the chance to see it, I can confidently report back: There is no justice here.
Love to you all. I’ll see you in a few days.
December 20, 2015