The Resistance Defense
64 Alabama L. Rev. 589
57 Pages Posted: 7 May 2012 Last revised: 13 Aug 2016
Date Written: June 20, 2012
This article explores a previously ignored set of defendants — those who choose to rely on a defense of resistance. From Warren Jeffs, the polygamist recently convicted of child rape in Texas, to John Brown, the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection, these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it. Though their belief systems varied, they appear throughout history in moments of social or political crisis and challenge the capacity of the law to encompass their story.
While their eventual convictions are not surprising, their reliance on a defense of resistance highlights two compelling but under-explored components of criminal law. First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value. The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome. If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow. Second, these procedural rights have a substantive component. They help to define notions of guilt and appropriate punishment. If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.
In a time when political identity and legitimacy are in play with movements from Occupy Wall Street to the Tea Party, and the Supreme Court’s decisions in Apprendi and Crawford place renewed faith in the citizen jury to construct meaning in the law, the question of how the law should respond to competing narratives looms. Resistance defendants serve as a powerful reminder that the system is only as strong its ability to contemplate a counter-narrative, and that the law ultimately draws its meaning from the lives of the governed. If the system is unable to encompass some lives and their stories, it loses some meaning and risks becoming foreign to the citizens themselves. This article examines the causes and consequences of the dilemma posed by the resistance defense, and proposes ways the criminal justice system might adapt and improve in response.
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