Protest Is Different

46 Pages Posted: 27 Sep 2016

See all articles by Jessica L. West

Jessica L. West

Vermont Law School; University of Washington - School of Law

Date Written: September 21, 2016


Acts of civil disobedience, long used to provoke social change, ignite a tense clash between foundational rule of law principles and deep-seated beliefs in the right to air grievances. This article explores these tensions and, relying upon evolving concepts of capital jurisprudence, argues in favor of a new framework for evaluating the criminal culpability of civilly disobedient protesters. United States Supreme Court jurisprudence has repeatedly recognized that capital cases are distinct from non-capital proceedings. One rationale underlying the acknowledgement that “death is different” is that the complexity of the moral determination inherent in a sentence of death requires a judgment of community condemnation. This assessment of condemnation must be made individually and by a jury; it cannot be prescribed by rule of law or imposed by a judge. Though once a jurisprudential silo, the analytical influence of death penalty law is expanding and, while the difference between a sentence of death and one of imprisonment is unmistakable, distinctions between and among criminal offenses do not begin and end with the punishment. Acts of civil disobedience, though criminal, are unlike ordinary criminal acts. The competing values underlying acts of civil disobedience are similar in depth and complexity to the values underlying the individualization and community conscience requirements in capital proceedings. This article proposes that in criminal prosecutions of protesters, society, represented by the jury, should individually evaluate whether an act of civil disobedience offends collective values sufficiently to warrant the community condemnation implicit in a criminal conviction.

Keywords: civil disobedience, protest, death penalty, capital punishment, community norms and values, juries, Eighth Amendment, criminal culpability

Suggested Citation

West, Jessica L., Protest Is Different (September 21, 2016). University of Richmond Law Review, Vol. 50, No. 2, Pp. 737-81, 2016, Available at SSRN: or

Jessica L. West (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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