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Chandra Bozelko: What would MLK think of bail reform?

Chandra Bozelko
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Daily Comet

Finally Fire Drill Fridays are over. In the 14 Fridays since Oct. 11, activist Jane Fonda led hundreds of people to be arrested as they protested what they deem the federal government’s insufficient response to climate change.

None of these collars seemed to have made a difference, most likely because bail reform has drained civil disobedience of its power.

In the United States, the tradition of civil disobedience is best exemplified and explained by transcendentalist writer Henry David Thoreau and civil rights leader Martin Luther King Jr. In separate centuries, local governments jailed them for acts of protest, experiences that led each to author a treatise on civil disobedience - “On the Duty of Civil Disobedience” for Thoreau and “Letter from Birmingham Jail” for King - that instruct rallies and sit-ins to this day.

When Thoreau was taken in for his protest of slavery and the Mexican-American War - failing to fork over any tax payments - someone satisfied his bill to release him, infuriating him at his shortened stint; he wanted to stay longer than one night.

King’s experience was similar. When convicted of disobeying a police order and fined $14 in 1958, King wanted to spend 14 days in jail rather than capitulate to what he saw as an unjust order. King wasn’t even allowed inside the jail after Montogomery, Alabama, Police Commissioner Clyde Sellers undercut him and paid his tab, much to King’s dismay.

When King was jailed in Birmingham in 1963, the place where he penned the defense of righteous rule breaking, he didn’t want to leave, even after eight days in solitary confinement. A wealthy businessman bonded him out, against King’s wishes. Luckily King finished the famous missive before that, because “Letter from a Birmingham Motel” loses its cachet.

Both Thoreau and King knew that their “no” to the condition they protested through criminal offense was only as good as their “yes” to the consequence for it. The bigger the penalty, the more profound the protest. That is, going to jail makes a bigger point. That’s why King once said he was proud of his crime of civil disobedience.

With the exception of Fonda, who spent one night in a Washington D.C. jail after her fourth arrest in as many weeks, the Fire Drillers were processed and released, courtesy of bail reform that was enacted in 1992, decades before the elimination of cash bail entered popular public discourse.

Like the new laws in New York and New Jersey, no money is required for a majority of charges in D.C.; the presumption of release applies to everyone, even protesters who need at least a pinch of punishment to maintain credibility as real rabble rousers. That it’s almost impossible to be held in custody after intentionally defying the law in protest probably would have flummoxed both Thoreau and King.

Proper civil disobedience is usually non-violent. It doesn’t normally subject disobedients to long sentences or high bonds. Even under oppressive bail schemes, no one - especially celebs - was likely to serve much time at all.

But to make their points, and to honor the tradition of civil disobedience, they should have served a little. True sacrifice stings.

Make no mistake; I support bail reform. I think it’s especially wasteful to lock up people who act out of an excess of conscience rather than a lack of one. And I don’t think that the fact an unyielding pretrial detention system might be necessary to meaningful civil disobedience provides sufficient reason to keep it. I bet Thoreau and King would have approved of these legislative changes to pretrial release if they had lived to witness them.

But they wouldn’t deny, now that bail reform is in place in several jurisdictions, that civil disobedience loses its bravery and its impact in those places. When the Roman poet Juvenal advised people to “Dare to do things worthy of imprisonment if you mean to be of consequence,” incarceration was a likely result of crime, as principled as it may have been. When even short jail terms aren’t on the table, civil disobedience is destined to be inconsequential.

Chandra Bozelko writes the award-winning blog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at outlawcolumn@gmail.com.