Friday, May 23, 2008

Civil Disobedience vs. Selfish Greed

About a month ago, Wesley Snipes was sentenced to the maximum three years in prison after being convicted on three misdemeanor tax charges. Given my obvious interest in the case (see here, here, and here), I felt a considerable urge to weigh in on the decision here on Dorf on Law; but all I could think to say was, "Hurrah!" Dorf on Law has a stated preference for shorter posts, but that would be too little of a good thing.

Yesterday brought news, however, that U.S. District Judge William Terrell Hodges has granted bail to Snipes while defense lawyers pursue an appeal. The question of bail in this case is a difficult one. As the judge pointed out, the appeal process could stretch out over many months or even years, raising the prospect that Snipes could be jailed for nearly the entirety of a sentence that could ultimately be reversed. The injustice of such an outcome is indeed troubling, but the judge's reasoning at least raises the question of whether such considerations by a court might lead to a de facto rule that any defendant with the financial resources to pursue a lengthy appeal could create his own reason for bail: "I plan to drag this out, so I cannot be jailed while I drag this out." Moreover, there is a rather obvious risk of flight posed by someone with Snipes's financial resources, international connections, and pattern of behavior in this case. (The court's order merely states summarily that "The Court is persuaded by the history of the case and all of the attendant circumstances that the Defendant poses no substantial risk of flight ...")

Be that as it may, it is at least possible that the more important issue here is whether Snipes is a hero or a scoundrel. In my original post on this subject, I pointed out that the likely outcome of this case for Snipes made his behavior -- at least ex post -- a rather poor advertisement for those who claim (as Snipes has) that the entire U.S. tax system is a fraud on the citizenry. I wondered how a person of lesser celebrity could look at Snipes and think that his course of action was something to be emulated. As an angry emailer soon pointed out to me (and as my post at least obliquely acknowledged), the cost/benefit analysis involved in Snipes's case could be very different if one views him as a heroic fighter against government oppression. In that light, the risk of time in prison (as well as the considerable financial loss) is nothing compared to the larger liberty interest that his actions attempt to protect. Principle is principle.

In other words, Snipes might not have been engaging in tax fraud because he wanted to avoid paying millions (or even tens of millions) of dollars in taxes but because he had consciously chosen to engage in civil disobedience against an evil state. In that case, perhaps my "hurrah" should be held in reserve for the possible reversal of his conviction on appeal, not his unjust conviction and sentence.

One obvious answer to this possibility is simply that Snipes's substantive claims are fatuous. Outside of the citizens of the District of Columbia, we Americans are not subject to Taxation Without Representation. After decades of trying, those who believe that our system is inherently illegal have lost every attempt to convince a judge, a Congress, or a President that the tax system is fundamentally corrupt. While it is possible that the system is nonetheless rigged against the truth, it is increasingly difficult not to view such claims as delusional.

Less obvious is the question of what Snipes would be doing if he really believed that he was a freedom fighter. Civil disobedience involves more than merely saying: "The government shouldn't do what it's doing to me, and I'm going to do everything I can to stop it." If that were the definition of civil disobedience, after all, then even every guilty criminal defendant would be a hero. The essence of civil disobedience is the willingness to stand up and accept the state's (unjust) punishment in order to rally public support to a just cause. It is, of course, natural to hope that the justice of one's cause will become manifest, allowing the public to rise up and make one's own sacrifice unnecessary; but at the very least, civil disobedience must involve a clear admission of what one has done and the willingness to say that the consequences of those acts -- even including the loss of liberty itself -- are less significant than the larger cause.

What has Snipes done? He has engaged in every kind of subterfuge, sending bad checks to the government, altering documents, showing up at his sentencing hearing with $5 million dollars to try to settle his back taxes for less than the amount owed (undermining his claim that taxes need not be paid), etc. In other words, he has engaged in activities that do not say, "I did this, and I'm proud to pay the penalty if others cannot see the injustice of punishing me for standing up for freedom," but rather, "I thought I could get away with not paying my taxes, and I'm still looking for a way to get out of this."

There is no way to know what is in this defendant's mind, but this looks nothing like civil disobedience and everything like selfish greed.

-- Posted by Neil H. Buchanan


Michael C. Dorf said...

It is frequently stated (including, I think, by me) that real civil disobedience requires the protester to accept the consequences even as he denounces them as unjust. I'm curious why this is so. One possibility is definitional: If you don't accept the consequences, for example, by fleeing, you are not engaged in "civil" disobedience. Civility, in this sense, requires one to accept the legal authority of the state, even while challenging its moral authority in the particular case. That's fair enough, but when people criticize protesters for failing to obey the forms of civil disobedience, they usually are not merely saying "you're using the wrong term. You are engaged in uncivil disobedience." They are saying something normative, as Neil does in this post. And yet, I can think of circumstances in which a protester would be morally justified not only in resisting the state's substantive demands but also in attempting to avoid detection and punishment. For example, whites and free blacks assisting escaped slaves via the Underground Railroad or Christians hiding Jews from the Nazis were not engaged in armed resistance, but neither were they in any sense obliged to make their disobedience known to the authorities. Doing so would have fatally undermined the disobedience itself. Thus, I wonder whether we need some term that is capacious enough to include all justified instances of nonviolent noncompliance with unjust demands by the state, whether or not accompanied by a willingness to accept the consequences.

Neil H. Buchanan said...

Mike is quite right that there is a continuum between the two poles that I describe in my post. Given that Snipes so clearly belongs at one end, while his defenders try to put him at the other, my argument fits these facts. The more difficult cases (like the Underground Railroad) are worthy of much more thought.

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