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.” [Eric Levenson / CNN]
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. [Candice Delmas / A Duty to Resist]
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).” [Candice Delmas / A Duty to Resist]
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.” [James W. Ely Jr. / Washington University Law Review]