Charles J. Ogletree,
Faculty Director

2001 OPINION EDITORIAL

Unequal Justice for Sharpton
By Charles J. Ogletree, Jr.

August 21, 2001, Africana.com

This past Friday, the Reverend Al Sharpton finished serving a 90-day sentence imposed for his participation in non-violent protests against military bombing in Vieques, Puerto Rico. His release follows by two weeks a referendum in which the residents of Vieques voted by an overwhelming margin - more than two to one - to demand the immediate cessation of military training exercises on their island. At a time when hundreds of non-violent protestors are being sentenced to prison terms for acts of civil disobedience in Vieques, this referendum highlights not only the moral imperative of their actions, but also the costs of justice in America.

Although strong and vocal opposition has accompanied military activity in Vieques since the Navy began training there in 1940, protests increased dramatically following the 1999 death of a civilian guard during live-ammunition exercises. Thousands of citizens have participated in acts of non-violent protest against the continued and flagrant disregard for the lives and safety of local Puerto Ricans.

These protestors are being arrested, charged, and sentenced to prison terms for following through on their convictions; many of them are also being mistreated by prison officials and government officers. The Reverend Jesse Jackson has charged that officers harassed and intimidated his wife, Jacqueline Jackson, during her arrest and incarceration for staging a peaceful protest. My own client, the Reverend Al Sharpton, recently finished serving a 90-day sentence for taking part in a similar demonstration.

Last week, when Rev. Sharpton completed his full prison sentence - among the longest of all the sentences imposed on Vieques protestors over the past several years - he had served three months in prison for a non-violent, misdemeanor offense. The Federal Bureau of Prisons and Attorney General John Ashcroft refused all requests to transfer Rev. Sharpton to a Community Corrections Center, and the federal judge who imposed the 90-day sentence denied all requests for work release or house arrest, arguing that "convicted individuals should receive equal justice under the law, regardless of a particular defendant's notoriety."

In fact, however, Rev. Sharpton did not receive equal justice, and his disparate treatment was a direct result of what the court terms his "notoriety." He was tried without ever consulting with a lawyer he knew, or who knew him, and he was sentenced to a period of incarceration more than twice as long as his co-defendants, due to a prior civil disobedience conviction. He was given no meaningful opportunity to present evidence or to call witnesses during his trial, and he was tried and sentenced on the same day - facts which did not persuade the appellate court when it affirmed the trial judge's sentencing decision. If stripped of its identifying characteristics, this case would more closely resemble the treatment experienced by African Americans in the segregated South of the 1950s, than the ideal of equal justice to which we claim to aspire in the 21st Century.

The most striking irony of this situation is that President Bush last month reversed his position on the naval exercises in Vieques, and declared that the bombing must stop within two years. This reversal on the Vieques bombing is nothing less than an acknowledgement of the grave safety risks posed by the military exercises, and it completely vindicates Rev. Sharpton and other protestors now in prison for their actions.

In other recent cases of civil disobedience, such as last year's ongoing protests in New York following the shooting of Amadou Diallo, the government has recognized that the underlying moral principles serve as legitimate motivation for political protest, and has ultimately chosen not to prosecute. In this vein, and having recognized the moral convictions of those whose only goal is the health, safety, and welfare of the Puerto Rican population, President Bush ought to release and pardon the protestors currently imprisoned for their non-violent acts of civil disobedience.

As Dr. Martin Luther King, Jr., wrote almost thirty years ago in his Letter from a Birmingham Jail, "an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice is in reality expressing the highest respect for the law." This notion is no less true when applied to fighting for human rights in Puerto Rico in the 21st Century than when invoked regarding the heroic civil rights movement of the 1960s. We must be as vigilant in our fight for justice now as we were then.

To their credit, Rev. Sharpton and the other protestors have never complained about their incarceration, and are not likely to shrink from the challenge of sticking to their convictions even if the consequence may mean a jail sentence. Rev. Sharpton is no stranger to pursuing controversial issues designed to promote racial justice and equal treatment, having participated in protests surrounding the death of Amadou Diallo and the police torture of Abner Louima, and having championed many just but unpopular causes, including, most recently, the matter of reparations for African Americans.

Many are wondering what will be the impact of Rev. Sharpton's arrest and what will be his political future. As a preacher and community activist, Rev. Sharpton is positioned to draw upon his arrest and his protest experience to inform his future work - he now has the opportunity upon his release from prison to take the issue of Vieques and other human rights issues to both national and international forums, and to further raise these issues through his exploratory campaign for President. In this way, Rev. Sharpton's experience parallels Dr. King's - spending time in the Birmingham jail allowed Dr. King to refine his political philosophy and also to internationalize his agenda to include issues such as opposition to the Vietnam war. Similarly, Rev. Sharpton has now expanded his reach from domestic civil rights and racial profiling to international issues of human rights and equal justice.

To again quote Dr. King, "law and order exist for the purpose of establishing justice, and when they fail in this purpose, they become the dangerously structured dams that block the flow of social progress."

This admonition is being borne out in Puerto Rico today. Following the Vieques referendum two weeks ago, the mayor of Vieques - noting that over two-thirds of residents demanded an end to the bombing - predicted widespread civil disobedience if the government and the military continued to ignore the pleas of the people. Law and order have failed to establish justice in Puerto Rico, and are instead blocking the flow of social progress.

The United States must address this situation immediately. The military should stop its bombing exercises in Vieques, and the government should immediately release and pardon all those jailed for acts of non-violent civil disobedience.

About the Author
Charles J. Ogletree, Jr., is the Jesse Climenko Professor of Law at Harvard Law School, and represented Al Sharpton during his appeal in the Vieques conviction.

First published: August 21, 2001

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