How to get out of a felony

Musings on incarceration, Part 3

The team that saved me. Omnia, Sarah, me, and Marcos

NOTE: I’m writing every day in memory of Lisa, who died on October 13. Not all of these posts will be sent out by email, and some I may write from jail/prison, as I go to trial on November 29. So if you want to follow this journey, visit the blog every day. I’ll try to post by 10 am each day, but occasionally, I’m sure a post will be late.

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I last wrote about the felony charge that was brought against me, 15 years ago on the cold streets of Chicago, on November 15. And I ended it on a bit of a cliffhanger. Arrested for merely standing on a public street, and handing out leaflets, I now faced the end of everything I had been striving for, in the first 26 years of my life. My career. My reputation. My entire future. All because I had bent over to reach for my leaflets, when an aggressive officer knocked me over and pinned me down.

“You’re ruining your life.”

Those words, spoken to me by a more friendly officer, when he allowed me to be uncuffed and brought to the bathroom, kept ringing through my head. Was this the end?

It’s a strange thing how alien the practical aspects of the legal system are to those who study it. But even as a legal academic, I felt completely helpless in this state. Of course, that’s part of what prison is all about: making the inmates feel completely powerless, to punish them for committing crimes. The fact that I (and many others in prison) had not actually committed a crime was irrelevant to the system.

As I sat in a cold Chicago jail cell, I heard periodic screams and moans. The person in the cell right next to me appeared to be having a mental breakdown. At one point, there were loud bangs from what appeared to be his fist punching the cell walls. It sounded like it really hurt. But no one ever came to help him out.

The food I was provided, after a few hours, was completely non-vegan. It didn’t bother me, however, because I was in no mood to eat. Strangely, the thing that did bother me was that I had lost all my leaflets and signs. I wrote previously that this new glimmering literature, in a day and age where it was hard to find good information distribute, had been incredibly exciting to me. When I opened up those PETA boxes and saw the powerful images and well-designed text, I thought, “Surely, we’ll change so many hearts and minds.”

But it was all gone, left on the sidewalk after the cops threw me in jail. I had let, not only myself, but the animals down.

I replayed the incident in my head over and over. I thought, “Should I have just left? Was it possible that I actually did something illegal or wrong?” And even though the principled part of me answered those questions, “No” and “No,” respectively, I still felt a deep sense of guilt and shame. I was now the person that I had shunned just a few years before, sitting in prison, as an alleged felon.

And it turned out to be the best experience, up that point, of my life.

There were two reasons for this. The first was that I realized that the law is not what we write in the books; it’s what happens on the street. To truly understand how the law operates you have to experience it firsthand. I had read so many casebooks and papers on the First Amendment. I had even written a paper myself on the subject. But I didn’t understand how the First Amendment actually operates until my own rights were violated.

This is consistent with a school of legal philosophy called “legal realism.” Legal realism comes in many flavors, but it’s pioneering thinker, the Supreme Court Justice Oliver Wendell Holmes, put it best: “The prophecies of what the courts will do.” His point was a simple one. Law is not a process of logic. It’s not a principle of justice. It’s simply a prediction as to how the institutions of power will enforce the rules, in a particular context.

This was a revolutionary idea, in many ways, when Holmes first wrote about the subject in the early 1900s. When most people thought of law, they thought of justice. They thought of statutes. They thought of constitutions and bills of rights. All of these things were irrelevant, fundamentally, to Holmes’s view. What mattered was simply what people in power, like the court system, would do.

What I learned on that day on the street of Chicago, however, is that Holmes was only partially right. What we call “law” is not just what the courts will do, though that is surely a powerful institution that must be reckoned with in any coherent understanding of law. It also matters what our entire system of justice does. Police. Prosecutors. Even the bureaucrats at the DMV. No matter what rights we have, in theory, if they are not put into practice by the gears in the machine, they are irrelevant.

That might seem a depressing view. After all, we are taught from an early age that the law is fair, that it’s neutral, and that it’s based on principle rather than personal whim. “Rule by law, not men.” Certainly, the violation of my First Amendment rights, on the whim of a single officer, reinforced that negative view of legal realism. What sort of system allows its principles to be corrupted so easily?

But there is a more optimistic take on legal realism, that unfolded over the next couple weeks and months. And it came through because, much to my surprise, I ended up being represented by one of the finest First Amendment lawyers in the City of Chicago, who taught me that, when you understand that “law” is just a prediction about how power will behave, you can start working to change it.

I wasn’t willing to ask my colleagues at Northwestern, where I worked, to assist me. I was too embarrassed by the arrest. But some activist contacts, including my friend Lauren from prison, encouraged me to reach out to Reed Lee, a free speech lawyer who made most of his living defending pornographers, but who was most passionate about defending activists on the side. Reed’s presence in the case short circuited whatever process had started, mostly because he impliedly threatened power with power. Reed was someone who could credibly say to law enforcement, “Hey, this guy did nothing wrong. And if you keeping going after him, I could sue.”

That threat was enough to get the entire case dropped within weeks. I was stunned by how quickly things reversed.

While I was lucky to have access to an influential lawyer, it taught me an important lesson. You have to fight power with power. And if you have power, you can get the system to do the right thing. (I’ll have much more to say about that in a future blog post, as my views on power have evolved considerably over the years.)

The second reason the felony was important, however, relates to something that happened outside of court: people came together to support me. And I realized that we had, not just a movement, but a community where we would back one another up. I was just beginning to get closer to some of the activists who were working on that campaign. And if they had responded the way I had, to meeting my first convicted felon, then our entire community probably would have fallen apart. But they didn’t.

They gave me support. They brought me food. They lifted my spirits and promised me we would fight on together.

When I called Marcos after coming out of jail, with my old flip phone, he immediately said he’d come out to hang out. The next day or so, we had a group hanging out in the Northwestern Law School library, eating crappy vegan cake with Omnia, Sarah, and Marcos, and playing monopoly into the middle of the night. We were laughing our heads off in the face of this felony. What this means is that I didn’t have to face this alone. And that meant everything to me in the world.

It was my first direct experience with one of the most important findings in social movement research: that social ties are crucial to supporting activists as they face repression. And by “repression” I don’t just mean arrests and incarceration. I mean the ostracism we face from our family for being different. I mean the jokes people tell about us at work. I mean the fact that even other social justice organizations mock and attack animal rights supporters merely for advocating for beings whose extermination is probably the worst atrocity in history. These are all mechanisms by which power puts us in our place, and prevents change. And the only way to convince people to defy these systems of power, when the costs are often so high, is by providing them social support.

That is the support I got. And it’s the support I’ve tried to give every other activist I meet, in whatever way I can.

The legal victory in the case, though reassuring, was far less important than this other revelation. And it’s one of the reasons I am not paralyzed by the prosecutions I have ahead of me, including the trial that begins in just 10 days. But more on that — and what I am doing to prepare for potential incarceration — in a post to come.