What's the Right Punishment for Tearing Down a Confederate Monument?

In Durham, the sheriff and district attorney appear divided over whether civil disobedience deserves greater leniency from the judicial system.

DURHAM, N.C.—As a crowd of protestors put a strap around a Confederate memorial on August 14 and pulled it off its plinth, Durham County sheriff’s deputies kept a low profile. They didn’t intervene. Instead they stood aside, filming, as the 83-year-old statue crumpled on the lawn of the old court house.

It turns out that wasn’t a sign of acquiescence. The next day, Sheriff Mike Andrews produced arrest warrants for several of the protestors. They were charged with a pair of misdemeanors, but also with two felonies apiece: one for participating in a riot with property damage of more than $1,500, and inciting a riot with property damage of more than $1,500.

“Let me be clear, no one is getting away with what happened,” Andrews said.

Those unexpectedly strong charges have added a jolt to the already charged aftermath of the statue’s removal. Among Durham’s political leaders, there’s no love lost for the statue. Inside this diverse, liberal bastion, Confederate monuments are as unpopular as social justice is popular, and those who support the statue are for the most part marginalized. But the guerrilla action of tearing the statue down has inspired a debate over how to reckon with monuments like the rebel soldier, how to handle the crime of tearing it down—and whether it is indeed a crime.

When several protestors held a press conference to demand leniency on August 15, attracting a large and supportive crowd, sheriff’s deputies arrived and arrested one protestor, Takiyah Thompson, immediately after it concluded. In addition to those accused of pulling down the statue, another man—a member of the leftist group Redneck Revolt—has been charged with two misdemeanors after bringing a gun to a demonstration later that week, spurred by rumors of a Ku Klux Klan march.

In North Carolina, the sheriff can determine the charges used to arrest a person, but it’s the district attorney who ultimately decides what charges to bring in court. The Durham County district attorney’s office is still investigating the case. On Tuesday, several of the people who were arrested had a court hearing, though their case was simply continued forward to a later date.

Outside the court house, roughly a hundred demonstrators rallied in support of the arrestees, arguing that the sheriff’s department is another extension of the same white-supremacist system that erected the Confederate statue in 1924. They wore hats that said, “Do It Like Durham: 9.14.2017,” and carried signs that demanded that the judicial system “stop the witchhunt against anti-racist activists.” Tension between the Durham activist community and the sheriff’s department is nothing new: Many of the demonstrators this week have also been protested the sheriff’s management of the county jail, including several deaths of inmates, one of them a 17-year-old who committed suicide this spring after nearly a year behind bars on murder charges.

The question of how to handle the statue removal operates on two levels. The first is mechanical: Do the charges on which Andrews arrested the suspects fit the crime? The second is more philosophical: What is the appropriate way for the justice system to deal with civil disobedience?

The first question is more directly operative, and perhaps simpler—though not necessarily simple. Under state law, the felony charges require both a riot and property damage of more than $1,500. Scott Holmes, an attorney for those who were arrested, argued that the incident doesn’t reach the bar for either.

“It doesn't mean the legal definition of a riot,” said Holmes, who was present at the August 14 protest but left before the statue was toppled. “There was no violence, there was no threat of violence, the mood was celebratory.”

He also disputed the sheriff’s valuation of the statue at $10,000. “I think it would be a contested legal and cultural issue as to how much this thing is worth, especially when there are many places that consider these things a liability,” Holmes said. “It really speaks to the cultural debate we’re having about a white supremacist past and present.” He also emphasized that the decision on what charges to bring sat with District Attorney Roger Echols and not Andrews.

It is unsurprising that the defendants’ lawyer would object to the potential charges, but some legal experts agree.

Irving Joyner, a professor of law at North Carolina Central University and veteran litigator in civil-rights cases, called the felony charges “a typical situation of overcharging.” Joe Kennedy, a professor at the University of North Carolina School of Law, noted that North Carolina’s legal definition of felony riot specifically requires violence or a willingness to commit it.

“In assigning felony liability, we want to distinguish people who are merely damaging property and those who are willing to hurt people,” Kennedy said. “It’s hard to find a riot here. You find vandalism, you can find disorderly conduct, but I don’t think you can find a riot when only one side shows up and the side that does show up doesn’t show intent to injure any person.”

Riot aside, there is the matter of what the statue is worth. A 2015 state law prohibits the removal of Confederate monuments, but the county is trying to decide what legal obligations it has now. Does it have to reinstall the destroyed statue? Or does it have to replace it? At the time of its erection, the statue seems to have cost about $5,000, but that included its granite plinth. The protest demonstrated the cheapness of its construction, too: Though it appeared to be bronze, the statue crumpled, probably irreparably in the fall, and turned out to be made of sheet metal that was merely coated in bronze. Assessing the present-day value of the statue is also challenging. In some cases around the country, local officials are seeking to remove Confederate monuments on the basis that the are in fact a liability because they create public-safety issues. Echols has asked the county to determine what the statue is worth as part of his investigation.

Joyner said that Andrews’s charges, and his vow not to let anybody get away with a crime, suggested he may be posturing, in an attempt to show members of the community a tough stand or to deter would-be topplers of other statues.

“I think a lot of it is political and public relations and getting out to people, ‘We’re going to go after these people real hard,’” Joyner said. “If this statue was worth saving, [the sheriff] could have posted people around it.”

In a statement, a spokeswoman noted that “the Sheriff's Office consulted with prosecutors on at least two occasions before obtaining warrants. Sheriff Andrews will continue to enforce the law and maintain respect for the District Attorney’s Office, and the judicial process, which ultimately will have the final say on the merit of the charges.” Andrews has also asked city and county officials to clarify guidelines for demonstrations.

Even as there is a debate over how harshly to charge protestors, legislators in some states—including North Carolina—have considered codifying lenient punishments for those who injure them. Demonstrators have seized on blocking roads and highways as a tactic for grabbing attention. In response, several GOP-controlled state legislatures have considered laws that would grant drivers some degree of immunity for injuries caused to protestors in roadways, provided they did not willfully hurt people.

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.

In a striking comment for a prosecutor to make, Echols offered an implicit rebuke to liberals who argued that while the statue was an abomination, the method of removal was inappropriate.

“Justice also requires that I be aware that asking people to be patient and to let various government institutions address injustice is sometimes asking more than those who have historically been ignored, marginalized, or harmed by the system can bear,” he said.

Irv Joyner, who has dealt with Echols in a professional capacity, told me that the district attorney had “been pretty reasonable” in cases involving defendants arrested amid protests. “I anticipate a reasonable outcome,” Joyner added. But what constitutes a reasonable outcome in a case like this tends to reside in the politics of the beholder.