Should Public Agents Resist Injustice Within the Justice System?

If Border Patrol agents should refuse to tear gas children at the border, shouldn’t prosecutors, police, and judges refuse some of their duties too?

Sarah Lustbader

Over the weekend, a “peaceful march at the border of Mexico … devolved into chaotic scenes of American border protection agents firing tear gas into a crowd that included children,” according to the New York Times. The incident prompted outrage, especially after a photograph circulated of a woman and her young daughters being tear-gassed: Both girls were in diapers. Experts in human rights and international law have questioned whether this use of force was justifiable or legal. President Trump and Secretary of Homeland Security Kirstjen Nielsen defended the firing of tear gas.

Geoff Gilbert, professor of international human rights and humanitarian law at the University of Essex in Britain, said that countries may control who comes into their territory, but that doesn’t give U.S. authorities “the right to fire tear gas into another country.” He pointed to language in the United Nations Charter that bars the “threat or use of force against the territorial integrity” of other members except when presented with an immediate threat. Even if the migrants had crossed the border, firing tear gas under these circumstances could still violate international human rights standards, because it was, in the words of an Amnesty International adviser, a “completely disproportionate use of force.” Under Customs and Border Protection’s own guidelines, officers may use deadly force only when they have “a reasonable belief that the subject of such force poses an imminent danger of serious physical injury or death to the officer/agent or to another person.”

Many have said that the agents should have resigned before complying with any orders to fire tear gas at children.

Over the summer, Antar Davidson did just that. As a youth care worker at an Arizona immigrant children’s shelter, he was ordered to separate two brothers and a sister, who were comforting each other with hugs after being separated from their parents. “I was told that they should not be able to hug,” said Davidson, “and [I] basically realized that being [at the shelter] would mean—continuing to remain there, despite the good I was doing—would mean that I had basically come up to doing things I felt were morally wrong.”

In her new book, “A Duty to Resist,” philosophy professor Candice Delmas discusses the question of whether civil servants should serve under President Trump. Some believe that resigning or refusing to sign up are the only options. “What undergirds this view is the belief that to obey or serve the state is to support it. This position––shared by many classical political thinkers, from Thoreau to Arendt––implies that it is unconscionable to serve seriously unjust governments.” Many who hold that view also believe that “bureaucratic participation in small-scale, not-quite disasters habituates civil servants to compromise on their principles” and makes worst-case scenarios more easily achieved.

On the other hand, if “the government is staffed only by wholehearted supporters of the president’s unethical agenda, the damage will be considerable.” Delmas argues that other options are available, which allow civil servants to promote the public good and do damage control from within, such as “conscientious refusal of particular orders or covert foot dragging.” In order to fulfill their duties of justice and fairness, and to uphold their professional code of ethics, Delmas told the Daily Appeal by email, “Border Patrol agents ought to refuse tear gassing the migrants, ought to persuade other agents to also refuse to carry out the order, and ought to denounce the orders to tear gas as unethical and wrong (within their professional organization’s channels and without, to the public).”

But if Border Patrol agents ought to refuse to fire tear gas, and if shelter workers should resign before telling children not to hug, shouldn’t prosecutors refuse to use their power to coerce defendants to plead guilty to crimes they did not commit? Or request that a judge set bail on a low-income teenager who has been convicted of nothing? Or pursue prison time, knowing that a drug treatment program or mental health care would be more effective and less cruel? Or offer a lowered sentence instead of a dismissal in the face of exculpatory evidence? Many head prosecutors obligate their line prosecutors to do such things, but resisting injustice is possible from inside prosecutorial offices, whether that takes the form of refusal, resignation, foot-dragging, leaking information, documenting injustices, or collective action. Indeed, it may even be required, ethically.

Should police officers resign before hauling people in on minor infractions, as some are commanded to do? Or should they leak body camera video showing their colleagues committing abuses?

And shouldn’t judges refuse to sentence people to life without parole––to die behind bars––for drug crimes? Judges routinely bemoan the unconscionable sentences that mandatory minimums and other sentencing rules force them to mete out, but rarely do we hear of resignations or acts of resistance. Judges rarely use some of the tools at their disposal, such as dismissing cases in the interest of justice, or holding prosecutors’ feet to the fire when it comes to misconduct.

In his seminal 1975 work “Justice Accused: Antislavery and the Judicial Process,” professor Robert M. Cover examines how antislavery judges in the antebellum period squared their beliefs with their duties as judges. Confronted by ideological advocacy and the sympathetic qualities of fugitives, he wrote, the judges generally upheld the laws. “[A]ntislavery judges consistently gravitated to the formulations most conducive to a denial of personal responsibility” which emphasized the importance of formal institutions, like law and procedure. These judges advanced various justifications, including the maintenance of “ordered society,” the separation of powers, keeping the union together, and upholding their judicial oath to support the Constitution. They often protested “that responsibility lay elsewhere,” and demonstrated “indications of distress, helplessness, and, indirectly, guilt.”

published on Nov. 30, 2018 in the Daily Appeal