On Not Prosecuting Civil Disobedience

How should the government deal with those who disobey the draft laws out of conscience? Many people think the answer is obvious: the government must prosecute the dissenters, and if they are convicted it must punish them. Some people reach this conclusion easily, because they hold the mindless view that conscientious disobedience is the same as lawlessness. They think that the dissenters are anarchists who must be punished before their corruption spreads. Many lawyers and intellectuals come to the same conclusion, however, on what looks like a more sophisticated argument. They recognize that disobedience to law may be morally justified, but they insist that it cannot be legally justified, and they think that it follows from this truism that the law must be enforced. Erwin Griswold, the Solicitor General of the United States, and the former dean of the Harvard Law School, appears to have adopted this view in a recent statement. “[It] is of the essence of law,” he said, “that it is equally applied to all, that it binds all alike, irrespective of personal motive. For this reason, one who contemplates civil disobedience out of moral conviction should not be surprised and must not be bitter if a criminal conviction ensues. And he must accept the fact that organized society cannot endure on any other basis.”

The New York Times applauded that statement. A thousand faculty members of several universities had signed a Times advertisement calling on the Justice Department to quash the indictments of the Rev. William Sloane Coffin, Dr. Benjamin Spock, Marcus Raskin, Mitchell Goodman, and Michael Ferber, for conspiring to counsel various draft offenses. The Times said that the request to quash the indictments “confused moral rights with legal responsibilities.”

But the argument that, because the government believes a man has committed a crime, it must prosecute him is much weaker than it seems. Society “cannot endure” if it tolerates all disobedience; it does not follow, however, nor is there evidence, that it will collapse if it tolerates some. In the United States prosecutors have discretion whether to enforce criminal laws in particular cases. A prosecutor may properly decide not to press charges if the lawbreaker is young, or inexperienced, or the sole support of a family, or is repentant, or turns state’s evidence, or if the law is unpopular or unworkable or generally disobeyed, or if the courts are clogged with more important cases, or for dozens of other reasons. This discretion is not license—we expect prosecutors to have good reasons for exercising it—but there are, at least prima facie, some good reasons for not prosecuting those who disobey the draft laws out of conscience. One is the obvious reason that they act out of better motives than those who break the law out of greed or a desire to subvert government. Another is the practical reason that 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. Jailing…

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