"You're ruining your life." How my first arrest changed everything.

Musing on incarceration, Part II

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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In my last post, I described my first contact with a convicted felon, a fellow student at the University of Chicago. I talked about my shock and discomfort. But I failed to point out two important things that I subsequently learned about our criminal justice system.

The first is that our nation imprisons far more people than any large or even medium-sized nation on this planet. We imprison more people than El Salvador, a Central American country that is so bereft by violence and corruption that thousands of people have fled and are now crowding the US border. We imprison more people than Belarus, a nation where injustice is so endemic that they used their air force to ground a commercial airliner to arrest a dissident journalist. We even imprison more people than China, a country with 3 times our population and a history of violent repression. Ending up in prison in the United States, in short, is as much a question of government policy as it is individual behavior. And the US has made clear over the years that we are willing to imprison a significant percentage of our population, despite our reputation as a freedom-loving democracy, for completely nonviolent actions. (This is especially true if you are poor or a member of a racial minority, of course.) Despite our reputation for loving freedom, this is, in many ways, a nation of cages.

The United States tops the charts in imprisoning its own people.

The second point to make is that the animal rights movement, in particular, has been the target of some of these tough on crime policies. The Animal Enterprise Protection Act, which became the Animal Enterprise Terrorism Act, was passed in 1992 at the peak of the law and order turn in American politics. While nominally focused on “violent” criminals, both acts impose special punishments on people for their political beliefs. Vandalizing your next door neighbor’s home is not an act of terrorism punished by the full power of the federal government; doing the same to a fur farm, under the AETA, is. Even beyond these more dramatic examples, however, is our nation’s cultural resistance to anyone who would challenge business as usual. And I literally mean “business.” The nation’s profit-seeking enterprises, especially since the Reagan era, have a strange-hold on our political and legal system. And those who challenge business, as animal rights activists have, are often punished severely. (This was part of what terrified corporate American in the 1950s, leading to the Red Scare. Even if full fledged socialism were unlikely, the push to reign in corporate excesses and distribute wealth more evenly would cut into their profits and power.)

I should, in short, have been more sympathetic to my friend Josh’s plight. But I wasn’t. And it took my own first tangle with the legal system to make me fully appreciate why our criminal justice was failing.

It happened on one of my first big grassroots campaigns. PETA was running a campaign to get Burberry, the high end British retailer, to drop fur. And as a young faculty member at Northwestern, my office was just a few short blocks from their main storefront in Chicago, on the Magnificent Mile and Michigan Avenue. Already losing hope that I would ever make it as an academic, that winter I decided I would start spending more time on animal rights.

It helped that I started making friends for the first in my life, and a guy named Marcos, whose new passion for veganism impressed me, agreed to join me every evening in handing leaflets out at Burberry. It also helped that we had just gotten a massive shipment of beautiful leaflets and signs. I was excited to deploy the well-designed literature to move people to give up fur.

And on one of the first days we went out, it nearly all collapsed because of a bad encounter with a cop.

I would typically arrive an hour early to demonstrations or outreach events, before Marcos and others would come, to scope out the location and get everything set up. But on this winter day, I was especially early, 2 hours before the scheduled time. It would typically only take me a few minutes to get things set up: to organize some signs, find the right literature, and decide where to set up the outreach. And so I started handing out leaflets. But, given how early it was, it was just me.

So when the cops arrived, there was no one else to witness what was happening.

The Chicago police, it should be pointed out, were notoriously corrupt. It was not just the most infamous cases, such as Chicago detective Jon Burge, who tortured dozens of innocent people in order to force them into confessions. It was the chumminess between the police and people in power: aldermen, city officials, and business owners. And so when the police arrived, it was not surprising to me that they immediately struck up a very intimate and friendly conversation with the security guard at Burberry.

What happened next, however, surprised me. You see, I was not just a law professor, with an interest in First Amendment law. (I was, at the time, drafting a paper about cost benefit analysis and free speech.) I was also a veteran outreacher, relatively new to protest but not to handing people literature on the street. I had done so hundreds of times and never had a police officer harass me for merely handling people leaflets. That changed on this day.

“You need to leave,” the officer said.

“Sorry, why’s that, officer?”

“You’re blocking the entrance.”

The entrance was 20 feet away.

“I don’t think that’s correct, Sir. But I can move if I’m blocking anyone.”

“Doesn’t matter where you stand, because if you move, you’ll block the entrance of the next store.”

This was when it became apparent to me that the officer wasn’t really speaking in good faith, or at least, that his words weren’t made in good faith. He was using a pretext to get me out of there.

I thought for a moment about what to do. I knew I had a right to be there. I knew there were other activists that would be arriving in the next hour. It didn’t take me long to decide I’d stand my ground.

“Thanks officer, but I have a right to be here.”

I ignored his continued requests for me to leave, and re-focused my attention on handing out leaflets.

I could see the frustration and then anger in the officer’s face. He stomped back into the store, and there was a strange interaction with the security guard. It seemed like the security guard was bossing the officer around! (I’d later learn that the security guards at Burberry were off duty officers, so the guard could very well have been the officer’s superior in the force.) And when the officer came back, I thought he’d try again to convince me to leave. But he didn’t.

Instead, he grabbed my arm, twisted it behind me, and shoved my face down to the cold cement. My beautiful new leaflets and and signs scattered everywhere, as he held me down.

“My things are…”

“Stop resisting!” he shouted, as he shoved my face and body harder into the cement.

And so I did. And within 5 minutes, I was sitting in the back of a cop car, heading to Cook County jail. My signs and leaflets were left on the sidewalk, never to be seen again.

It all happened so fast that I wasn’t able to process. I think for the first hour I just had my mouth wide open, as if I was a stunned observer of my own life falling apart. I was a law professor, an aspiring academic. I was someone who had never been in trouble with the law in my life. I followed rules to the point that I would not even cheat on video games. And here I was heading to jail.

When I found out what I was being charged with, I was even more terrified: felony resisting arrest. There was no way I’d ever sit for the bar exam; get appointed to a law school; or frankly have any sort of professional future. Heck, who knows, I thought to myself, when I’ll even get out of jail. My only exposure to a felony, other than my friend Josh, was strange hypotheticals in law school. Now those law school hypotheticals were becoming my real life.

Whether due to anxiety or just the passage of time, which seems totally indeterminate when you’re sitting in the back of a cop car or a jail cell, I needed to use the bathroom badly. And the arresting officer’s partner, who was much nicer, agreed to un-cuff me and take me to the bathroom. He stood watching me as I pee’d.

“Can’t believe you’re a law professor,” he said. By this point, they had looked through my ID and discovered that I had a faculty card at Northwestern law. “You’re on a bad path, though. You’re ruining your life.”

He had a friendly round face. He was Black, in a department that was notoriously racist towards people of color. I could tell he was giving me this advice in good faith, that he meant what he said and was genuinely concerned.

“I didn’t do anything, though,” I pleaded.

“Doesn’t matter. Why are you out here messing with these companies? Just go back to ordinary life.”

And I realized that was this was really about. This was the system’s way to stop people from “messing with its companies” or stepping outside the lanes of “ordinary life.” Like an immune system destroying a foreign object, this was the way our criminal justice system would destroy my foreign behaviors: activism, protest, and animal rights. What was right really didn’t matter. Heck, what the law said really didn’t matter. (The charges would be dropped, but I was still subjected to an unconstitutional arrest, with little avenue to challenge it; the cost of bringing a suit wasn’t worth what I’d get in return.) What mattered was forcing compliance with the system.

And that, at root, is what our system of criminal justice is ultimately about.

I don’t mean to say that in an entirely negative way. Complying with some aspects of our system — the rule against murder, or driving on the right hand side of the street — makes a lot of sense. But for the longest time, I was taught to respect the moral authority of the law, and not just its pure power to force compliance.

My first arrest taught me, very vividly, that moral authority is something the law very often lacks.

But it also taught me something even more important: that experiences like an arrest, that seem so negative and destructive (and, in truth, usually don’t just seem that way; they are), can be transformed into something formative, affirming, and positive. But I’ll tell that story tomorrow. It’s the story of how I got out of my first felony, and what it taught me about the law and social change.