At least 183,000 people signed a petition seeking leniency for Occupy Wall Street member Cecily McMillan, who was convicted last week of assaulting a plainclothes police officer during a pub crawl pit stop at Wall Street’s Zuccotti Park on St. Patrick’s Day 2012. McMillan did not dispute accusations that she had elbowed Officer Grantley Bovell during the NYPD’s eviction of protesters from the park on the six-month anniversary of what OWSers describe as the “original occupation;” her lawyers explained during her trial that what the police and prosecutors termed an assault was instead an instinctive response to Bovell’s grabbing her breast from behind. (The sexualized crowd-dispersal tactics of the New York Police Department during the Occupy Wall Street protests have been well-documented and Bovell has his own personal history of violence – particularly while out of uniform but on the job). However, nowhere in the various media coverage of the trial, nor the communiqués from McMillan’s supporters, was the right to self-defense from police violence indicated as an explanation for her actions. Rather than challenge the sociopolitical consensus and laws that create near total immunity for on-duty police officers during confrontations with civilians, McMillan and her defense team instead proclaimed her innocence, leaving her in the awkward position at sentencing of having to reframe the incident as “an accident” for which she was sorry. Within the context of a general population submissive to state power, and a local police brutality movement chilled by progressive political advancement, claims of innocence were perhaps necessary to solidify her support, signaling to observers that she was worthy of sympathy; but at what cost? By emphasizing her individual condition and privileging that above others involved in the criminal legal system, are we foreclosing a greater opportunity for a collective response to a systemic punishment problem?
On Monday McMillan was sentenced to 90 days in jails to be followed by five years of probation. I have never met her. I respect the temerity she showed in taking the case to trial and the bravado required to believe she could win. I feel for her; I agree with the social science research – that the current criminal sentencing regimes are overly punitive and serve no valid public safety purpose. McMillan should not be incarcerated, should not be left with a felony conviction that will severely restrict her ability to gain employment, education or student loans – no one should. The collateral consequences of a criminal conviction, rooted in the racism of Reconstruction and Jim Crow as White America floundered for ways to re-enslave their former African property, have become so severe and nonsensical that the top law enforcement officer in the United States, Eric Holder, has himself described them as a failed policy that serves no public safety purpose. At least McMillan has the advantage of being perceived as racially White, a status that will help her to overcome some of the discrimination related to criminal convictions, as research by Devah Pager has shown.
The Judge presiding over her case – Ronald Zweibel – underscored the absurdity of the sentencing process, indicating that her punishment had nothing to do with the threat that McMillan posed to society. According to the New York Times account, Zweibel insisted on jail time to “send the message that assaults on police officers would not be tolerated.” Of the 500,000 arrests each year in New York City, nearly all are for non-violent crimes. These people too will be punished, like McMillan, not in the end for what they have done or to protect the public safety, but to set an example – the outcomes of their lives placed in the balance for a hard-to-quantify future benefit to the overall public good, the possible prevention of an as yet un-attempted future crime. This is a strange type of justice.
What metric do supporters of the carceral system use to prove it as legitimate? Is it the hundreds of patently innocent people executed by the state despite wrongful convictions? Is it the dramatic racial disproportionalities? Is it the world’s highest incarceration rate? Is it the fact that 80 percent of criminal cases involve people too poor to pay for their own lawyer – that nearly bankrupting the global economy or laundering billions of dollars for organized crime merit less jail time than possession of $10 of marijuana? Is it that Scooter Libby can be absolved of all wrong-doing simply by being pals with the Vice President? Is it the uneven balance between prosecutors and defense attorneys that coerces 98 percent of defendants to plead guilty to avoid the heightened stakes should they dare take their case to trial? Is it that Bronx prosecutors refuse to bring charges against the Corrections Officers at Rikers Island because they might walk off the job? Is it that after dozens of men are released after years and years in prison as the Brooklyn District Attorney’s office shifts through the files of discredited police officers, not a single prosecutor, many of whom must have at least been aware of the fraudulent behaviors if not supporting them, has been arrested, fined or even publicly chastised? The law is unjust – it is primarily an expression of the powerful and a tool used in the service of the status quo. It has served to codify slavery, discrimination, Japanese internment and warrantless surveillance. Believing that the law will serve justice is a set up.
Is seeking leniency from such an institution a tacit acknowledgment of its legitimacy? Does a cry for mercy imply that others are not entitled to this same reward? Shanda Strain, a Manhattan Assistant District Attorney involved in McMillan’s prosecution spoke to this sense of exceptionalism. “In essence, [McMillan] has repeatedly argued that the rules should not apply to everyone equally — that defendants who are politically motivated deserve special treatment.” Now, there is no evidence to support Strain’s suggestion that the rules, in so far as they apply to what is commonly referred to as the criminal justice system, apply to everyone equally – the very fact that people believed that political pressure could persuade Zweibel towards leniency should put that argument to rest – also race remains among the most significant factors in predicting outcomes from law enforcement contact, to prosecution, to sentencing. But Strain’s point remains: is not an organized plea for leniency in a single case a separation, an attempt to persuade toward exceptionalism? In seeking leniency by virtue of innocence, we are pitching our advocacy in the terms provided by the state – a strategy that relies on an alliance with the very object we have challenged as corrupt where we might otherwise argue for the dissolution of a morally bankrupt penal system and the attendant requirement of a reimagining of other forms of justice.
The calls from journalists and advocates alike to frame McMillan’s arrest experience as related to First Amendment rights to protest, in addition to describing her as innocent, cannot be seen as anything other than attempts to separate her from the thousands of arrests that occur each day in the City. If she is deserving of a different type of support and justice than others around her, it is only because those others are not. McMillan’s own descriptions of her experience at Rikers Island further cement this divide as her supporters gleefully announced that she had deputized cellmates to write letters on her behalf and that others served as her protectors in the showers. Protectors from who? McMillan doesn’t deserve compassion because she was assaulted, because she was innocent, or because she was politically minded or barhopping; she deserves compassion because in the context of our current punishment system, everyone does. A reliance on claims to innocence leads us away from a structural critique, instead implicitly reinforcing the systemic injustice we claim to be fighting against. By exceptionalizing the case we maybe even foreclose the opportunities for our larger goals. As Audre Lorde, Lilla Watson and other feminists have told us: there is no separate survival.
In the early days of Occupy Wall Street, it was common for protestors to assert that police officers were in fact part of the 99 percent. This exposed a fundamental misunderstanding. Outside the United States, it is not uncommon for police officers to share in the struggles of the majority – in Brazil, for example, police unions have joined other service workers, teachers, the homeless, in protesting the World Cup – but here, in New York City, especially as inequality escalates that just isn’t the case. Even under New York’s new Mayor, beloved by liberals as a self-identified “progressive,” and his appointed NYPD Commissioner Bill Bratton – the architect of stop and frisk who nevertheless has been given a pass by mainstream NYPD watchdog non-profits – the role of the police has been defined to facilitate economic advancement. When combined with the most odious aspect of Broken Windows policing – piles of arrests for low-level crimes and violations – these ideologies ensure that the police and the criminal courts will never be on the side of justice to which it seems OWS and McMillan’s comrades aspire.
In the context of order maintenance policing – the repression of the Occupy Movement comes as no surprise. It could have been worse. Bratton said he would have wiped out Occupy encampments on the first day. The LAPD under his watch, of course, used rubber bullets and tear gas to disperse a May Day rally – violent actions that became a news story in part because police officers attacked journalists as well (innocents). By attempting to separate McMillan from her cellmates on Rikers Island through the paradigm of innocence, her supporters lose an opportunity for solidarity with other communities who are the more traditional targets of police brutality and repression in New York City. After all what is disorderly, and who decides? It was a miniscule minority of New Yorkers whose disaffection with Occupy led the city to expend millions of dollars of our own money breaking it up. What opinion poll suggested that the showtime dancers – Bratton’s cause du jour – were a chief cause for concern and excision from an economy in which nearly half of the city is in poverty? Although Bratton says the words community policing over and over again, I see no examples of him actively seeking out what the various communities within his realm would like from their police force. Did he ask Javier Payne? As Bernard Harcourt suggests, isn’t police brutality itself a form of disorder?
Certainly police murder is. Asked for comment about a Mother’s Day protest of family members whose children have been killed by the NYPD, Bratton said he felt bad, but that the criminality of the deceased justified the NYPD shootings. One more time: Bratton claimed out loud and on the record the role for his 35,000 officers to serve as judge, jury and executioner – prompting not a peep of public rebuke from a single elected official. Last weekend, the NYPD shot three people, two fatally. What does that mean for our society – for our city – that the top cop can glibly justify the shooting deaths of young men and not provoke outrage? Instead the same City Council members demanding #Justice4Cecily on one day, were the next demanding that Mayor de Blasio add 1,000 new officers to the police. How many people need to die in police custody, need to have their lives torn apart for an arrest on an otherwise meaningless charge, when do we say enough is enough? How long will activists pander to elected officials who refuse to acknowledge the systemic corruption of a prison industrial complex that has so thoroughly captured the bureaucratic imagination that its supporters and apologists lay claim to the entirety of the political spectrum. At what point does disruption of a social order defined by injustice become something that we don’t have to run away from, but can embrace?