While there are political arguments that support harsh charges for protestors, or lighter ones for people who injure them, there is also a political argument in favor of lesser punishment. There’s a rich intellectual strain that argues that acts of civil disobedience, like tearing down statues that commemorate treasonous, white supremacist revolts against the United States government, deserve lenience.
Andrews argued in his letter, in effect, that anyone who violates the law should be subject to its full force: “Persons who refuse to obey the law; whether they concern permits, blocking roads, bring weapons to demonstrations, wearing masks at demonstrations or on public property, or engaging in the destruction of property, should expect to be held accountable.”
Not so, argued the legal philosopher Ronald Dworkin in a classic 1968 essay.
“The popular view that the law is the law and must always be enforced refuses to distinguish the man who acts on his own judgment of a doubtful law, and thus behaves as our practices provide, from the common criminal,” Dworkin wrote. “I know of no reason, short of moral blindness, for not drawing a distinction in principle between the two cases.”
Dworkin was writing about the prosecution of several Vietnam War opponents, including William Sloane Coffin and Benjamin Spock, who had broken the law by encouraging resistance to the draft. (All but one of the defendants were eventually convicted, but the verdicts were overturned on appeal due to the errors by a judge.)
To Dworkin, it was possible and necessary to draw a distinction between the motives of the common criminal and the criminal of conscience. Furthermore, he wrote, “our society suffers a loss if it punishes a group that includes—as the group of draft dissenters does—some of its most thoughtful and loyal citizens.”
In his only comments so far on the case, Echols (who is black and, like most Durham officials, a Democrat) suggested he might grant the protestors the benefit of that argument.
“A just resolution must also include balancing accountability for the actual destruction of property in violation of the law with the climate in which these action were undertaken,” he said. “Justice requires that I must take into account the pain of recent events in Charlottesville and the pain in Durham and the nation.”
Echols also cited not only the political climate at the moment, but also the state law, which all but guaranteed that any attempt at removing the statue by local authorities would have been blocked by the same Republican-dominated state legislature that enacted the ban two years ago: “Justice requires that I consider that Durham citizens have no proper recourse for asking our local government to relocate or remove this monument.”
Finally, Echols placed the statue’s removal in the context of centuries of oppression of black people and other people of color—starting in slavery, but continuing through the Redemption era, especially in North Carolina, and Jim Crow, up to the present, when racial disparities still taint the justice system. Nationwide and in Durham, as I wrote when the statue came down, African Americans are more likely to be stopped by police, arrested for many offenses, and incarcerated.